dopco Co., Ltd. (Law Firm Sejong, Attorneys Gyeong-il et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Dong, Attorneys Woo-pon et al., Counsel for the defendant-appellant)

June 2, 2016

1. The Defendant’s corrective order as indicated in attached Form 1, which was issued against the Plaintiff by Resolution No. 2015-251 on July 20, 2015, and the penalty surcharge payment order issued against the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts and circumstances of dispositions;

A. The status of 22 plaintiffs, etc.

1) In the name of the two Industries Co., Ltd. (hereinafter referred to as “dusan Heavy Industries”; hereinafter referred to as “stock company” in the name of all the companies, modern construction, KS construction, Hyundai Heavy Industries, Green Industries, Samsung Water Industry, Samsung Heavy Industries, Samsung Construction, Gold Construction, Gold Construction, Hanyang Construction, Hanyang Construction and Exchange Co., Ltd. (hereinafter referred to as “existing 12 companies”), the Plaintiff, Gyeongnam-Nam, Shin Young, Tae Young Construction, Tae Young Construction, Tae Young-young Construction, Gaan Construction, Hankdong Construction, Hanan Construction, Mosco Engineering, Masco Engineering, (hereinafter referred to as “former 12 companies”), new comprehensive construction (hereinafter referred to as “the Plaintiff, etc.”) refers to 22 companies including the Plaintiff, etc., and when they refer to the rest of the companies other than the Plaintiff, they constitute a business entity under Article 21 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “Masco Engineering”).

2) The general status of the Plaintiff is as follows.

Plaintiff 224,955 682,056 234,964 30,055 25,075 25,479 2,672,672,672, 190, as of the date of establishment of net income for the total amount of capital stock included in the main text.

(b) Tender documentations for construction works of natural gas main pipelines and management offices ordered by the Korea Gas Corporation;

1) The main pipes and main pipes 1) The Korea Gas Corporation is a supply facility constructed and operated by the Korea Gas Corporation to supply natural gas to large-user electric power plants and urban gas companies. The Korea Gas Corporation, from the end of 2008, ordered construction works in full from around April 2009 to August 2012, 29 (17, 2009, 1, 201, 8, 2011, 201, 3, 2012). Of these, 22 companies, including the Plaintiff, participated in the bidding after prior agreement on the division of construction sections, construction sections, successful bidder of each construction section, and bid rate (209). The Korea Gas Corporation ordered construction works for integrated energy supply facilities (210 years, 200, 210, 2610, 261, 206, 206, 361, 206, 206, 206, 36, 201,

2) The bidding schedule and bidding method for each section of the instant construction project are as follows.

. 209. 209. 2009. 10. 21. 2009. 1, 200,000,000,000,000. 1. 2. 2. 1,000,000,000,000,000. 2. 1. 2. 1,000,000,000,0000,0000.00.000.00.000.00.00.00.00.00.00.00.00.0.0.00.00..00..00.0..00.0.0..00.0..00. 1.01.0.0. 1,000,000,000,000

3) Construction of 16 construction sections ordered in 2009 (hereinafter “the primary pipeline construction”)

A) On January 2009, the Korea Gas Corporation publicly announced the instant construction project through an annual order ordering plan, and accordingly, the employees of the department-level employees in charge of the business of 12 companies were gathered around March 2009 or around April 2009, and agreed that “The Korea Gas Corporation would avoid competition as there is a risk of lowering the successful bid price in the event of competition, and to divide the sections and fix each other.”

B) Afterwards, the Korea Gas Corporation relaxed the qualifications for participation in bidding on April 17, 2009, unlike the previous bidding, at the announcement of the announcement of the construction of natural gas gas pipelines and control stations of 17 construction sections on April 17, 2009, the Korea Gas Corporation became qualified for participation in bidding on the remaining 21 companies including 12 existing performance history. The existing performance 12 companies divide the existing performance of 16 construction sections to 12 companies as to the 16 construction sections immediately after the announcement of the announcement of the tender, and agree to divide the remaining 4 construction sections to some of the newly qualified companies, and to divide the remaining 21 companies to the final decision.

C) Accordingly, the remaining 21 companies: (i) 12 existing 12 construction sections out of 16 construction sections were distributed with 12 construction sections; (ii) the rest of 4 construction sections were allocated with Thai Construction, New Gyeongnam Enterprises, and Dong Construction Industry; (iii) the 16 construction sections were distributed with the remaining 21 construction sections, which were composed of five members of the joint contractors who will award a successful bid (hereinafter “SB”) and (iv) the remaining companies, other than the successful bidders, agreed to the effect that the remaining companies will participate in the construction sections other than the respective 21 sections; and (v) the 16 construction sections distributed with a construction section in the first joint act were separately gathered by drawing, and thereafter, the remaining 21 construction sections were invested in each of the construction projects by the Korea Gas Corporation on May 20, 2009, respectively, (hereinafter “the first joint act”).

D) At the time of the tender for the primary pipeline construction, the Plaintiff did not have the qualification to participate in the bid due to the lack of the performance of the primary pipeline construction works, and thus, the Plaintiff was awarded the bid in the “Gim System-Banan-Banan, Go Chang-Ban, and Gosung-Ban Construction Works,” which was awarded as a representative company by the new company, along with the comprehensive development of identity (the equity ratio is 50% new, 35%, and 15% comprehensive development of identity).

4) 10 construction works ordered on February 2, 2011 to August 2012 (hereinafter “the second main pipeline construction works”).

A) The Korea Gas Corporation announced the second main pipeline construction from February 201 to August 2012. From February 201, 201, the Korea Gas Corporation announced the second main pipeline construction, and agreed in advance on the successful bidder and bid rate with respect to the said construction around the beginning of March 2011, the successful bidder and bid rate with respect to the construction ordered in consecutive order, and agreed in advance that the bid rate shall be at least 80% as in the first collaborative act, and the bid rate shall be at least 10% as in the first collaborative act, and the successful bidder and the company shall participate only in the second main pipeline construction without being awarded a successful bidder any more (hereinafter referred to as “ second collaborative act”). The said plaintiff et al. agreed in advance on the bid rate for the second main pipeline construction each time the bid price of the second main pipeline construction is publicly announced, and the successful bidder and the company shall enter into an agreement in advance with respect to the participation rate other than the successful bidder and the company.

B) On July 18, 2011, the Korea Gas Corporation, among the second main pipes construction works, publicly announced the bidding of the sections for “Suljin-Yakakakak Construction Project” (hereinafter “instant Section”). The two preceding weeks, the Plaintiff, two industries, gold industry, trinsing companies, joint ventures construction, ice construction industry, new companies, solar construction, solar construction, Han Young-gu construction, and Gyeongcheon Construction, etc., which were not awarded a bid in the bid for the Section 5) were a group of members to draw lots in the vicinity of the Seoul Station on July 18, 2011 or around August 8, 2011. The three-party representative companies, the Plaintiff, and Tae Young Construction were determined as a successful bidder (the share of three-party companies, 50%, 35%, 15%, 15%, 30%, and 15%).

C) On the other hand, the Plaintiff participated in the construction of “public-service main pipelines” and “ Daegu Innovation City Integrated Energy Supply Pipelines”, respectively.

C. The defendant's disposition

1) On July 20, 2015, the Defendant, including the Plaintiff, agreed to determine the successful bidder and the bid rate for the instant bidding. In the event that a successful bidder was awarded a bid once regardless of the representative of the awarded joint supply and demand group or the agent of the awarded joint supply and demand group, the Defendant determined the successful bidder for the second main pipe construction, and agreed to not receive a successful tender thereafter (hereinafter “instant collaborative act”); and on the ground that the instant collaborative act constitutes Article 19(1)8 and 3 of the Fair Trade Act, the Defendant issued a corrective order and an order to pay penalty surcharge (hereinafter “instant disposition”) as stated in attached Form 1 by a resolution against the Plaintiff on July 20, 2015, on the ground that each of the instant collaborative act constitutes Article 2015-251 of the Fair Trade Act.

2) The Defendant imposed a penalty surcharge on the Plaintiff in accordance with Articles 22 and 55-3 of the Fair Trade Act, Article 61 and attached Table 2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, and public notice on the detailed standards for imposition of a penalty surcharge (hereinafter “public notice of penalty surcharge”), and the specific procedure for calculating the penalty surcharge is as follows.

A) Criteria for calculation

The relevant sales shall be deemed the total amount of the contract price of the construction section in which the bid is awarded or participated in the bidding among the construction works in the instant case, but where a joint contractor is organized to participate in the bidding, the participation in the bidding, the bid price, etc. shall be excluded in consideration of the fact that the representative of the joint contractor is determined and the subcontractor is deemed not to participate directly in the bidding.

On the other hand, considering the content and ripple effect of the collaborative act in this case, since the degree of gravity of the act constitutes "seriously serious violation", the imposition rate of 7-10% shall be applied in accordance with the provisions of 4.1.1.c. (1) (a) of the penalty surcharge notice. However, the collaborative act in this case is an obvious speculative collaborative act that only causes competition-restricting effect as a bidding collusion, and the construction in this case shall apply 10% imposition rate in comprehensive consideration of the fact that it has a significant impact on the national finance as a large public project.

The base rate for calculating the sales amount related to the current status of participation in the bid included in the main sentence shall be 7,937,421,000 won for plaintiff 1's successful bid (SBS, 35 per cent of equity ratio, main contract)

(B) calculation of the first adjustment calculation criteria and the second adjustment calculation criteria;

In consideration of the fact that the plaintiff consistently recognized the facts of the act from the investigation stage to the completion of the deliberation by the commission, and cooperates in the investigation, such as making statements helpful to determine illegality, the penalty surcharge IV.3.C. (3)(a) shall reduce 30% of the standards for calculation in accordance with the provisions of

Plaintiff 7,937,421,00 won that there is no amount of KRW 5,56,194,700, for the calculation basis of the second adjustment basis for the calculation basis of the second adjustment basis contained in the main text; 30% reduction;

C) Determination of imposition penalty surcharges

The plaintiff is a hybrid with the share ratio of 35% of the joint contractor, and thus, has been awarded a successful bid for the instant construction section, so the adjustment standard shall be reduced by 20%. Since the instant construction section entered into a contract by the Korea Gas Corporation under the principal contractor management method, 5% of the above calculation standards shall be additionally reduced, and the construction market has been significantly decreasing due to the deterioration of the economy, the above calculation standard shall be additionally reduced by 10%, and the penalty surcharge shall be imposed in the amount of KRW 3.61 billion, which is less than KRW 3.61 billion.

Plaintiff 5,556,194,700 won reduced by 5% reduction by 10% reduction by 3,611,00,000 won for joint supply and demand construction competitions, which are included in the main sentence

[Ground of recognition] Facts without dispute, entry of Gap evidence Nos. 1 and 7 (including virtual number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Considering the following circumstances, the instant disposition is unlawful as it deviates from and abused discretionary power.

1) Since the principal contractor management method clearly separates the contract amount between the principal contractor and the secondary contractor from the beginning, the contract amount to be paid to the secondary contractor is no different from the sales amount of the principal contractor, and the contract amount paid to the secondary contractor out of the tender amount of the instant construction section should be excluded from the calculation of the relevant sales amount.

2) The Plaintiff is merely holding a share of 35% with the bid price awarded by the instant construction section as a hub company. Therefore, the relevant sales should be calculated by taking this into account. Since the Defendant calculated the entire bid price as the relevant sales amount, it is too excessive to take measures to reduce the amount of 20% at the final penalty surcharge determination stage.

3) The imposition rate of 10% applied by the Defendant to the Plaintiff is too excessive in light of the imposition rate imposed by the Defendant in light of the circumstances where the degree of illegality is significantly low, such as the Plaintiff’s failure to participate in the first collaborative act compared to the remaining 21 companies, and the imposition rate imposed by the Defendant in the case of Honam High-speed

4) The Plaintiff’s participation in the second collaborative act while the basic collaborative structure of the instant collaborative act is completed, and it is apparent that the Plaintiff participated in the instant collaborative act simply or engaged in an abstract role. As such, the Defendant is obliged to reduce the penalty surcharge due to the simple participation as stipulated in the provisions of Section IV.3(c)(2) of the Penalty Surcharge Notice against the Plaintiff.

B. Determination

1) Whether the contract amount paid to the subcontractor should be excluded from the relevant sales

A) statutory provisions, etc. concerning the calculation of relevant sales

Article 22 of the Fair Trade Act provides that a penalty surcharge may be imposed on a violator who has committed an unfair collaborative act within the extent not exceeding 1/10 of the sales amount prescribed by the Enforcement Decree of the Fair Trade Act. Accordingly, Article 9(1) of the Enforcement Decree of the Fair Trade Act provides that “Sales” refers to the sales amount of goods or services sold in a particular business area during the period of violation or the amount corresponding thereto (related sales amount). However, in the case of a bidding agreement, it refers to “contract amount”. Article 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act provides that a penalty surcharge shall be imposed on the basis of relevant sales amount. Meanwhile, in calculating the relevant sales amount, [Attachment 2] provides that the scope of related goods shall be determined by considering the type and nature of goods directly or indirectly affected by the violation, transaction area, transaction stage, transaction stage, etc., and the period from the date of the violation to the end of the violation, and each scope shall be determined individually and specifically by type of act.

According to the provisions of the aforementioned statutes, the Defendant may impose upon an enterpriser who has conducted unfair collaborative acts a penalty surcharge calculated on the basis of the sales amount or contract amount of the relevant goods or services sold in a particular business area during the period of violation. The scope of the relevant goods or services, which is the premise for the calculation of sales amount or contract amount, ought to be determined individually and specifically by taking into account the contents of the agreement between the enterpriser who has conducted unfair collaborative acts, the kind and nature of the goods or services which are directly or indirectly affected by the unfair collaborative act, the kind and use, the possibility of substitution, the transaction area, transaction counterpart, and the transaction phase (see, e.g., Supreme Court Decisions 2008Du1835, May 26, 201; 2013Du126, May 27,

Therefore, if a contract is concluded by the prime contractor contract method, such as the bid in this case, the meaning of "contract amount", which serves as the basis for imposing penalty surcharges in the collaborative act in this case, shall be reasonably interpreted in accordance with the purpose of legislation in consideration of the definition of sales or related sales in accordance with the above statutes.

B) the facts of recognition

In full view of the above evidence, evidence No. 6 and the purport of the whole pleadings, the following facts are acknowledged.

(1) 한국가스공사는 이 사건 공구의 입찰을 주계약자 관리방식에 의한 공동계약으로 발주해 입찰을 진행하였으며, 위 입찰에서 삼환기업, 원고 및 태영건설을 주계약자로, 다림건설, 대성글로벌네트웍스를 부계약자로 각 선정하였다.

(2) The primary contractor management method means a system in which the ordering person determines the type of construction and the estimated construction cost, minimum ratio of shares, etc. of the specialized contractor among the entire types of construction, and the primary contractor participating in a tender shall include the specialized contractor in the joint contractor as a subcontractor. If the primary contractor is awarded a contract, the ordering person shall conclude a contract with the specialized contractor who is the primary contractor, separate from the primary contractor, and shall also pay the construction cost directly to the specialized constructor. The primary contractor, who is the successful bidder, was introduced for the purpose of preventing the problems of defective construction, etc. which appear in the form of a transaction giving a subcontract to the specialized contractor, etc.

(3) At the time of the announcement of the instant construction, the Korea Gas Corporation specified the following as follows the process in charge of specialized constructors, estimated construction costs, and the minimum participation ratio by section, who are subordinate contractors, and the following corporations are obliged to provide the services to be shared by specialized constructors who are subordinate contractors:

Table services included in the main text shall be 15,731,090,100,14,906,069,200 13,757,518,500 minimum participation ratio (ju6) 14.84% 14.98% 14.98%

Note 6) Equity shares in minimum participation

(4) 이 사건 공구의 총 계약금액 79,374,210,000원(부가가치세 제외) 중 발주자와 체결된 계약금액은 주계약자인 삼환기업이 22,838,140,000원, 원고가 15,986,698,182원, 태영건설이 6,851,441,818원이고, 부계약자인 다림건설은 11,795,050,000원, 대성글로벌네트웍스의 계약금액은 21,902,880,000원이다.

C) Determination

Examining the above facts in light of the legal principles as seen earlier, it is reasonable to view that the contract amount entered into between the ordering person and the sub-contractor in the instant construction section tender is excluded from the relevant sales amount for the following reasons. On the contrary, the instant disposition that calculated the penalty surcharge with the total contract amount of the instant construction section as the relevant sales amount was erroneous as to the sales amount, which serves as the basis for imposing the penalty surcharge, and thus, the Plaintiff

(1) In imposing a penalty surcharge, whether to specify the amount of the penalty surcharge within a certain scope prescribed by law is discretionary act. However, the contract amount in the bidding collusion of this case, namely, the amount of sales, is determined within the scope of the penalty surcharge prescribed by the Fair Trade Act and the Enforcement Decree of the same Act, and is the basis for imposing the penalty surcharge. Therefore, erroneous calculation of the sales amount is not only erroneous but also unlawful as it goes against the law and regulations.

(2) The penalty surcharge system under the Fair Trade Act is an administrative sanction aimed at reducing economic incentives and strengthening the preventive effect of unfair collaborative acts, etc. by increasing disadvantages arising from detection of unfair collaborative acts. Since the pertinent collaborative act is related to consideration for services under Article 9(1) of the Enforcement Decree of the Fair Trade Act as an unfair collaborative act under Article 19(1) of the Fair Trade Act, the term "related services" under the above provision refers to, in principle, to the entire contract subject to a penalty surcharge in light of the purport of the aforementioned penalty surcharge system. However, in the bid collusion like the instant collaborative act, if there are parts that directly or indirectly affecting the mutual binding effect of the entire construction project subject to an agreement on communication with intent to engage in unfair collaborative acts, it is reasonable to interpret that the pertinent collaborative act means only those which cause a specific competition-restricting effect upon the formation of the agreement, except for those parts which directly or indirectly

(3) 이 사건 공구의 총 계약금액 79,374,210,000원(부가가치세 제외) 중에는 원고를 포함한 삼환기업의 공동수급체가 주계약자로서 발주자인 한국가스공사에 제공하는 용역에 해당하는 45,676,280,000원(= 삼환기업 22,838,140,000원 + 원고 15,986,698,182원 + 태영건설 6,851,441,818원) 부분과 한국가스공사가 부계약자인 다림건설과 대성글로벌네트웍스와 사이에 체결한 계약금액 33,697,930,000원(= 다림건설 11,795,050,000원 + 대성글로벌네트웍스 21,902,880,000원) 부분이 포함되어 있다. 그런데 이 사건 공구의 총 계약금액 79,374,210,000원은 입찰공고 시 발주자인 한국가스공사가 추정한 전체 공사금액 96,325,147,000원의 82.40%에 해당하는데, 이 중 주계약자의 계약금액 45,676,280, 000원은 전체 추정 공사금액 중 부계약자의 추정 공사금액 44,394,677,800원(= 15,731,090,100원 + 14,906,069,200원 + 13,757,518,500원)을 제외한 나머지 주계약자의 추정 공사금액 51,930,462,200원의 87.95%이고, 부계약자의 계약금액 33,697,930,000원은 부계약자의 추정 공사금액 44,394,677,800원의 75.91%로서 주계약자와 부계약자의 낙찰율이 크게 차이가 난다.

(4) 한국가스공사는 이 사건 공구의 부계약자인 다림건설, 대성글로벌네트웍스와 사이에 별도의 계약금액을 명시하여 계약을 체결하고 계약금액을 직접 지급하였고, 부계약자의 낙찰율이 주계약자의 낙찰율보다 현저히 떨어지므로, 부계약자의 위 계약금액은 이 사건 공동행위로 인한 영향을 받았다고 보이지도 않는다. 따라서 원고가 이 사건 공동행위에 의해 이 사건 공구의 서브사로서 낙찰예정자로 결정되어 구체적인 경쟁제한효과가 발생하게 된 부분은 원고를 포함한 위 공동수급체의 계약금액에 한정되고, 부계약자의 계약금액 부분에는 입찰담합에 관한 합의의 성립에 따른 구체적인 경쟁제한효과가 발생하거나 그럴 우려가 있다고 보이지 아니한다.

(5) In addition, since the principal contractor, including the Plaintiff, did not acquire the contract amount of the sub-contractor, and did not make any profit in any form, it cannot be deemed that the Plaintiff sold the contract amount.

(6) On the part of the construction contract of the instant construction section, there was no difficulties in calculating the contract amount of the principal contractor as the Defendant did not have to determine the contract amount as the sales amount, since the contract amount of the instant construction section was separately indicated by the principal contractor and his joint contractors and their joint contractors.

(7) Even if a penalty surcharge imposed on an unfair collaborative act, including bid collusion, has the nature of an administrative penalty surcharge imposed on such an act of violation, in principle, the imposition of a penalty surcharge under the Fair Trade Act is intended to deprive the illegal economic benefits obtained from such act of violation.

(8) Meanwhile, the Defendant asserts that it is reasonable to calculate the entire contract amount of the instant construction section as the sales related to the amount of the instant construction section, since the Plaintiff agreed with the successful bidder through the instant collaborative act in the situation where the Plaintiff was aware of the total contract amount of the construction section bid in the instant construction section, and ③ as the contract amount of the instant construction section was concluded by the principal contractor management method, reduced by 5% by reflecting it as the grounds for reduction at the stage of the determination of penalty surcharges, it was reasonable to calculate the entire contract amount of the instant construction section as the sales related to the amount of the instant construction section.

① As seen earlier, it is reasonable to interpret the phrase “contract amount” to mean the contract amount corresponding to the portion that results in the specific competition-restricting effect upon the conclusion of the agreement, such as the conclusion of the contract, except where the unfair collaborative act does not affect directly or indirectly among the entire contract, is determined by the enterpriser as the successful bidder, and the contract amount is determined by the contract owner based on the agreement between the project owner. ② While the principal contractor selects a subcontractor in advance at the time of participation, the ordering person has separately provided the type of construction work and the contract amount of the secondary contractor. ③ There is no evidence that the contract amount of the secondary contractor is included in the object of the agreement of the instant collaborative act, and the actual sub-contractor’s bid price rate is 75.91%, which is considerably low compared to the bid price ratio of the principal contractor, and thus, it seems that the price of the secondary contractor is not affected the contract amount of the secondary contractor, as seen earlier, the Defendant’s allegation that the contract amount of the main contractor including the Plaintiff entered into the contract with the subcontractor is excluded from the contract amount of the contract amount of the main contractor.

2) Sub-committee

Therefore, the instant disposition is unlawful without examining the remainder of the Plaintiff’s remaining arguments.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment Omission]

Judges Yoon Sung-won (Presiding Judge)

1) It is an underground underground pipeline that supplies high-tension natural gas produced from the production base to the supply point for stable gas supply to the natural gas supply source.

Note 2) The management office is divided into a pressure control office, a blocking control office, and a block valve according to its function and use, and the pressure control office plays a role in the stable supply of natural gas that has been transported by high-tension through piping networks by reducing certain pressures required by the demand source, the blocking control office plays a role in blocking gas supply or blocking gas flow at the time of major construction works in an emergency, and the block valve plays a role as a kind of valve for prompt blocking the pipeline network when an emergency occurs.

3) In order to pass an advance examination in the main pipeline construction tender by 2008, the company should have the construction performance equivalent to the scale of the ordered main pipeline construction work (distance) and the company meeting this requirement was in the absence of 12 existing performance history. The existing 12 performance history was determined to apply this requirement to the tender to be ordered in 2009, and only one meeting was held.

Note 4) The Korea Gas Corporation had the capacity to participate in the bid in 2009 and 8 km or more of the capacity to participate in the construction work.

Note 5) Construction of the Cheongra Management Office and “Ying-Hing Main Pipelines Construction Works” are “Cheongra Management Office’s construction works.”

Note 6) means the equity ratio in the entire construction works.