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Plaintiff
Samsung SDR Co., Ltd. and six others (Law Firm Sejong, Attorneys Yellow-sik et al., Counsel for the plaintiff-appellant)
Defendant
Fair Trade Commission (Law Firm Song, Attorney Lee Jae-hwan, Counsel for defendant-appellant)
Conclusion of Pleadings
October 21, 2003
Text
1. Each disposition listed in paragraphs 1 through 6, and 8 of [Attachment 1] as of August 5, 1998 against the plaintiffs, and each order for publication listed in Attached Form 7 as of March 21, 2002, which the defendant issued against the plaintiffs, shall be revoked as follows:
A. Part of the act of assistance to the Handoz Co., Ltd. in Paragraph (1)
(b) Paragraph 2;
(c)Paragraph 3;
(i) Paragraph (a)
Sheba
Article 2(3) of the Act on Assistance to the Unsatisfic Development Corporation
D. Part of the support act of Plaintiff Samsung Fire Marine Insurance Co., Ltd and Plaintiff Samsung Life Insurance Co., Ltd. under paragraph (4)
(e) the part related to paragraphs (7) through (d) above.
(f)in the imposition of penalty surcharges under paragraph 8;
(1) The portion exceeding KRW 937,000,000,000,000,000,000
D. The portion exceeding KRW 351,00,000,000, out of the penalty surcharge for the plaintiff Samsung Fire and Marine Insurance Corporation
ally, the portion exceeding KRW 5,418,00,000 among the penalty surcharge against the Plaintiff Samsung Life Insurance Co., Ltd.
x) the portion exceeding KRW 7,000,000 out of the penalty surcharge imposed on the Plaintiff Samsung Heavy Islands Corporation
2. Each claim of the Plaintiff Samsung Electronic Co., Ltd., Plaintiff Samsung C&C Co., Ltd., and Plaintiff Samsung F&D Co., Ltd., Plaintiff Samsung Fire Insurance Co., Ltd, Plaintiff Samsung Life Insurance Co., Ltd, and Plaintiff Samsung F&T Co., Ltd., respectively, are dismissed.
3. Of the costs of lawsuit, the part arising between the plaintiff Samsung Electronic Co., Ltd., the plaintiff Samsung Heavy Industries Co., Ltd, the plaintiff Samsung Heavy Industries Co., Ltd. and the defendant is assessed against the above plaintiffs. ② The part arising between the plaintiff Samsung F&D Co., Ltd., the plaintiff Samsung F&D Co., Ltd., the plaintiff Samsung F&V Co., Ltd., the plaintiff Samsung Heavy Life Insurance Co., Ltd. and the defendant is assessed against the above plaintiffs. The remainder is assessed against the above plaintiffs. The part arising between the plaintiff Samsung F&T Co. and the defendant
Purport of claim
Each disposition listed in paragraphs (1) through (6) and (8) of attached Forms 1 through (8) against the plaintiffs of August 5, 1998 by the defendant and the order for announcement listed in paragraph (7) of attached Forms 7 of March 21, 2002 shall be revoked.
Reasons
1. Details of the disposition;
The following facts may be acknowledged in full view of the following facts: (a) there is no dispute between the parties; (b) evidence Nos. 1, 2, 1, 2, 2, and 63; and (c) evidence No. 63.
A. As of April 1, 1998, the Plaintiffs are the affiliates of the “Thosung” designated by the Defendant as a large enterprise group, and are the entrepreneurs under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 5814, Feb. 5, 1999; hereinafter “Act”).
B. The Plaintiffs committed each of the following acts.
(1) From April 1, 1997 to March 31, 1998, Plaintiff Samsung Life Insurance Co., Ltd. (hereinafter “Tsung”) deposited KRW 10 billion or KRW 20 billion in each of the 8 specified money trust accounts, including Choung Bank, in the total amount of KRW 180 billion. At the same time, eight banks, including Choung Bank, the trustee of the above Plaintiff’s affiliated company, Samsung Motor Co., Ltd. (hereinafter “Tsung”), and Samsung Antland Co., Ltd. (hereinafter “Ssung”), purchased KRW 10 billion or KRW 20 billion in the discount rate of KRW 71% through 18.50%, respectively.
Table 1> The deposit period of a specified money trust for Samsung Bio-resources, affiliated company's CP issuance amount and revolving period
(unit: 00,000 won, per cent)
본문내 포함된 표 삼성생명보험의 특금 가입내용 계열사 CP 건당 발행금액 및 기간 은행명 가입금액 가입기간 발행회사명 CP발행금액 CP회전기간 발행자 할인율 조흥은행 20,000 `97.4.30.～`00.4.30. 삼성자동차 20,000 `97.5. 2.～`99.5. 2. 12.43～12.45 10,000 `97.6.5.～`99.6.5. 〃 10,000 `97.6. 9.～`99.9. 9. 12.09～12.56 서울은행 10,000 `97.6.27.～`00.6.27. 〃 10,000 `97.6.30.～`00.6.27. 11.71～12.18 제일은행 20,000 `97.5.23.~`98.11.23. 〃 20,000 `97.5.22.～`98.5.22. 12.40～18.50 한미은행 10,000 `97.8. 1.～`00.7.31. 〃 10,000 `97.8. 4.～`00.8. 4. 11.84 상업은행 20,000 `97.5.30.～`99.5.30. 〃 20,000 `97.5.29.～`99.5.29. 12.25～14.72 동화은행 10,000 `97.6.27.～`00.6.27. 〃 10,000 `97.6.27.～`00.6.27. 11.71～12.18 20,000 `97.7.21.～`00.3.21. 〃 10,000 `97.7.28.～`98.4.27. ? 보람은행 10,000 `97.5.29.～`00.5.29. 〃 10,000 `97.5.30.～`00.5.30. 11.92～12.19 한일은행 50,000 `97.9.26.～`00.9.25. 삼성랜드 22,400 `97.9.29.～`98.6.30. 12.45 계 180,000 ? ? 142,400 ? ?
In addition, the plaintiff Samsung Bio-resources deposited the total of KRW 18.5 billion, KRW 15 billion, KRW 15 billion, or KRW 20.5 billion in a specified money trust account of a commercial bank, on three occasions from August 28, 1997 to October 16, 199, as seen in the following Table 2> and Table 3
Table 2> The deposit period of a specified money trust for Samsung Bio-resources, the amount of Samsung Motor Vehicle CP issued and the revolving period
(unit: 00,000 won, per cent)
The Commercial Bank at the discount rate of 18,500 "127.31 to 7.14.71.71. or 7.15,000 "97.304.70 on Oct. 1, 198.31 to 7.7.14.20,000 "97.31.70 on Oct. 14, 198.70" 14.20,000 "97. 1,304. 53,500" 14.70 " 1,304. 16. 1, 304" 53,500 / 14.70 / 1,735 / 1,735?
Table 3> The deposit period of a specified money trust for Samsung Bio-resources, the amount issued by the KCP and the revolving period
(unit: 00,000 won, per cent)
The Commercial Bank at the discount rate of 20,000 "Korea Commercial Bank on October 16, 97" between the CP issuing amount of the CP issuing company's subscription, the special amount of the CP issuing amount included in the main text, 20,000 "98.30-6.82.12.82
(2) On January 11, 1997 through December 30 of the same year, Plaintiff Samsung F&E Co., Ltd. (hereinafter “Plaintiff Samsung F&E”) installed a factory building and machinery and equipment (Clean R-L CD production, electrical equipment, central monitoring equipment, etc.) in its ceiling plant and made it available for use from January 1, 1998 to Samsung E&E Co., Ltd. (hereinafter “Tsung E&E”), which is an affiliated company, from January 1, 1998, as seen in Table 4, respectively.
Table 4> Details of the lease agreement
(unit: million won)
Payment of rent for the term of the ticket contract contained in the main sentence of 1998, 2001 through 68, 304, 243, 60, 1825, 52,060, 47, 999, 348, 909, 200
(3) As follows, the Plaintiff Samsungland supported the financing for the unsatise Development Co., Ltd. (hereinafter “unsatise Development”) and the Esatise Development Co., Ltd. (hereinafter “Resatise”) (hereinafter “Resatis”).
㈎ 무진개발에게 1995. 3.부터 1996. 12.까지 대여한 대여금 18,210,000,000원에 대한 이자 3,811,000,000원을 1998. 4. 현재까지 회수하지 아니하였다.
㈏ 다음 〈표5〉에서 보는 바와 같이 무진개발 및 연포레져에게 담보없이 이자율 연 20%의 이자율로 8,642,000,000원 및 1,800,000,000원을 각각 대여하였다.
Table 5> Details of financing loans
(unit: million won)
본문내 포함된 표 지원객체 대여금액 대여기간 이자율 무진개발 8,642 `98. 1. 1.～`98.12.31. 20% 연포레져 1,550 `98. 2.20.～`98.12.31. 20% 〃 250 `98. 3. 6.～`98.12.31. 20% 계 10,442 - ?
(4) The Plaintiff Samsung Bio-resources, Samsung Fire and Marine Insurance Co., Ltd. (hereinafter “Trisung Heavy Industries”) and Samsung Heavy Industries Co., Ltd. (hereinafter “Trisung Heavy Industries”) leased the Samsung Heavy Industries Site to the Samsung Heavy Industries Co., Ltd. (hereinafter “Trisung Heavy Industries”) between October 1997 and March 31, 198, and subsequently, as seen in the “Trisung 6”)’s Table 6>, as seen in the “Trisung 6,744,00,000 and the rent of KRW 1,170,000 in total and KRW 7,914,000,000 in total, as seen in the “Trisung 6”).
(unit: million won)
Samsung C&M 1,459 885 2,344 SamsungM 4384 684 Samsung Heavy Heavy Industries 4,847 41,888 Gohap6,744 1,744 1,170 7,914
Table 6
(5) As seen in the following: (a) Plaintiff Samsung F&E, Samsung Bio-resources, Samsung Electronic, and Samsung Fire: (b) leased the International Management Training Institute located in Samsung C&T-si, Samsung C&M (hereinafter “International Training Institute”) in the form of leasing the said International Institute; (c) paid rental deposit amount of KRW 23.4 billion and monthly rent to Samsung C&T, an affiliated company.
Table 7> Status of lease of International Training Institute
(unit: million won)
본문내 포함된 표 임 차 계열사 보증금 월임차료 월 임차료 환산 합산 평 당 보증금 임차면적(평) 계약 기간 삼성에스디아이 3,125 17 4,458 10.2 438 10% `94.12.～`99.12. 삼성생명 3,125 17 4,459 10.2 438 10% 삼성전자 15,625 83 22,292 10.2 2,194 50% 삼성화재 1,562 8 2,229 10.2 219 5% 계 23,437 125 33,438 ? 3,289 75%
(6) As seen in the following Table 8, the Plaintiff Samsung F&V Co., Ltd., Samsung T&M, Samsung Fire, Samsung C&V Co., Ltd. (mutually changed Samsung Aviation Industry Co., Ltd.; hereinafter “T&C”) and Samsung Bio-resources leased a training institute located in the Gyeongnam-gun, Busan Heavy Industries (hereinafter “U&T Training Institute”), and paid a rental deposit of KRW 35 billion and monthly rent to Samsung Heavy Industries, an affiliated company, in the form of renting it.
Table 8> The current status of lease of the Industrial Training Institute
(unit: million won)
(1) The amount of monthly rent conversion (i.e., monthly rent conversion (+B) monthly rent conversion (i.e., monthly rent conversion (i., monthly rent conversion) included in the main sentence of this Table shall be 30% of the leased area (i.e., July 4, 97. 4, 15,000) of Samsung C&E’s KRW 18,800. 12,0730 on September 14, 14, 97; 6,000; 16910% of Samsung F&M Co. 6, 197. 6, 197; 106. 86, 269. 10% of the monthly rent conversion (i.e., monthly rent conversion) for Samsung C&E’s KRW 15,000 on September 15, 197; 6, 10008; 196, Oct. 16, 1965>
C. For the following reasons, the Defendant deemed each of the above acts as unfair support acts under Article 23 (1) 7 of the Act, the Enforcement Decree [Attachment 1] of the Act, “General Unfair Trade Type and Criteria (Related to Article 36 (1))” (amended by Presidential Decree No. 17564 of March 30, 2002; hereinafter “Standards for Unfair Trade Practices”) 10.
(1) Paragraph (1)(b)(1)(hereinafter “specified money trust in this case”)
A specified money trust is characterized by the truster’s instructions. The above banks purchased Samsung Motor Vehicle, Samsungland, and Hando-in corporate bills issued by the plaintiff Samsung Bio-resources at a discount rate much less than the market interest rate, which is much lower than the market interest rate, and the plaintiff purchased the bonds issued by the plaintiff Samsung Bio-resources, Samsungland, or Hando-in independent management company. Considering that the date and amount of the purchase of the specified money trust to the above banks and the period and amount of revolving the above corporate bills purchased by the above banks, the above banks coincide with each other, and thus, the plaintiff made a specified money trust to the above banks and caused the above banks to purchase the commercial papers issued by Samsung Motor Vehicle, Samsungland, and Hando-in at a discount rate lower than normal discount rate. Accordingly, the "specified money trust" is an act that may impair fair trade by offering excessive economic benefits to the above companies by purchasing commercial papers at a higher rate than the market interest rate, thereby creating or maintaining the status of the business entity with significant influence in the market.
(2) The acts referred to in subsection (b)-2 of the above (hereinafter referred to as “lease of the production plant of this case”).
The lessor, the Plaintiff Samsung F&E, the lessee, did not enter into a lease contract in advance before January 1998, but entered into a lease contract later on April 15, 1998, and thereafter leased at a price lower than the interest corresponding to the period from the commencement of use to the payment of the rent. Therefore, the “instant production factory lease” constitutes an act that is likely to impair fair trade by allowing Samsung E&M to maintain and strengthen the status as a serious business operator in the pertinent market by providing excessive economic benefits by leasing real estate at a rent lower than normal rent and providing excessive economic benefits.
(3) The act of subsection (b)(3) above (hereinafter “the instant loan”).
The company, the capital of which was lost in a series of consecutive development and chains, is in a situation in which it is practically impossible to borrow money from the outside. The plaintiff Samsungland offered excessive economic benefits by not collecting interest or lending money at a low interest rate, and thus, it is an act likely to interfere with the withdrawal of the above company without competitiveness in the field of comprehensive recreation or accommodation, which is the market of the above company.
(4) The act of subsection (b)-4 above (hereinafter “instant automobile sales site lease”)
In general, when a lessor allows a lessee to use or profit from leased articles, and at the same time, he/she receives a rental deposit or rent from a lessee. However, the Plaintiff Samsung Bio-resources, Samsung Fire, and Samsung Heavy Industries leases real estate at a price lower than the interest corresponding to the delayed period by leasing a rental deposit or rent to Samsung Heavy Industries, an affiliated company, and receiving a rental deposit or a rent after starting the business. Therefore, the Plaintiff Samsung Heavy Industries is an act that could interfere with fair trade in the automobile sales market by providing excessive economic benefits by leasing real estate at a rent lower than normal rents.
(5) The acts mentioned in subparagraph (5) (hereinafter “lease of International Training Institute”) and the acts mentioned in subparagraph (6) (hereinafter “Lease of the Industrial Training Institute”) of the above Paragraph (b) (5)
In light of the fact that: (a) the Plaintiff Samsung F&E, Samsung C&M, Samsung C&M, and Samsung F&M concluded an exclusive use contract with the International Training Institute; (b) the Plaintiff Samsung F&E, Samsung electronic, Samsung F&M, SamsungM, Samsung F&M, Samsung C&C, and Samsung C&M concluded an exclusive use contract with the Industrial Training Institute; (c) the Plaintiff’s payment of rent much higher than the rent for each of the large-scale building buildings; (d) the educational facility fee for the actual use was paid separately; and (e) the actual use of the rent would have been significantly lower than the average rent for each of the affiliated companies that did not enter into a lease contract; and (e) the actual use of the rent would have sufficient means for the Plaintiff Samsung C&T, the owner of the land; and (e) the “T&E lessee” provided the Plaintiff Samsung C&T, the owner of the land, with economic benefits as much as the interest and monthly rent for each of the rental deposits, and (e) applied for Samsung C&T, an affiliated company.
D. Accordingly, the defendant applied Articles 24 and 24-2 of the Act (amended by Act No. 6043 of Dec. 28, 1999) to each of the above acts of the plaintiffs, and issued a corrective order and a penalty surcharge under Article 98-172 of the plenary session resolution of August 5, 1998, but upon the plaintiffs' objection, reduced part of the penalty surcharge for the plaintiff Samsung Bio-resources under Article 98-33 of the plenary session ruling of October 19 of the same year, and subsequently changed ex officio as of March 21, 2002 by the plenary session resolution of March 21, 2002 (hereinafter referred to as the "order to publish the facts of violation of the Act").
2. Whether the instant disposition is lawful
A. The parties' assertion
With respect to the claim that the disposition of this case is lawful in accordance with the above disposition grounds and relevant Acts and subordinate statutes, the plaintiffs asserted that the disposition of this case should be revoked on the following grounds.
(1) “The instant specified money trust”
㈎ 원고 삼성생명은 보험회사로서 정상적 자금운용방법으로 특정금전신탁을 활용한 것뿐이고, 특정금전신탁자금의 구체적 운용은 수탁은행의 재량적 판단과 책임하에 이루어지는 것이다. 실제로도 위 원고가 가입한 특정금전신탁펀드에 편입된 자산에는 삼성자동차 등의 기업어음이 포함되어 있지 않다. 또한 위 원고의 특정금전신탁 수익률은 수탁은행들의 삼성자동차 등의 기업어음 매입시 적용한 할인율보다 높았으므로, 수탁은행이 역마진을 보면서 위 원고의 특정금전신탁자금으로 위 기업어음을 매입하였다고 할 수 없다. 따라서 구체적 연계에 대한 증거도 없이 위 원고의 신탁금액 및 기간이 각 은행들의 기업어음 매입금액 및 기간과 일치한다는 사실만으로 위 원고가 위 은행들에게 위 기업어음 매입을 지시하였다고 속단할 것이 아니다.
㈏ 시중금리가 30%를 상회함에도 수탁은행들이 이보다 훨씬 낮은 10%대의 금리로 삼성자동차 등의 기업어음을 매입한 것은 위 원고가 위 수탁은행들에게 특정금전신탁을 하면서, 일정기간 시중의 기업어음 할인율에 변동이 있더라도 수탁은행이 당초 약정된 할인율로 기업어음을 계속 회전매입하기로 하는 소위 ‘옵션 CP거래 약정’을 맺어 두었기 때문이다.
㈐ 삼성자동차가 발행한 기업어음 3건 17억 3,500만 원(〈표2〉 참조)은 소위 ‘자투리 CP’로 수탁은행들이 신탁계정 운용에서 발생한 이자를 스스로 기업어음에 투자하였던 것이지 위 원고의 신탁자금으로 매입한 것이 아니다.
㈑ 한솔제지 기업어음 매입
It was true that the above plaintiff had commercial bank take over commercial papers of the same amount after being admitted to a specified money trust of the commercial bank. However, since the so-called so-called "corporate business" was made by allowing the above plaintiff to take out loans through the commercial bank in the so-called so-called "corporate business" in the same manner as to the Hyundai Han River Co., Ltd. which subscribed to group insurance in the above plaintiff in the same manner as in the so-called so-called "corporate business" was decided at a level similar to that of the so-called discount rate at the time of the acceptance of the commercial papers, it cannot be said that a specified money trust for the so-called so-called so-called so-called "specified money trust" is merely the ordinary business day of the above plaintiff and cannot be deemed as support to the so-called so-called so-called "business activity."
In addition, since an act of improper assistance is established only when a fair trade damage exists, the "specially related person or other company" shall be deemed to mean only the "company controlled by the affiliated company or the specially related person". Therefore, it is difficult to be the entity that supports the act of improper assistance, which is a "independent management company of relatives" that is bound by the above plaintiff, because it is separated from the "affiliated" in an enterprise group, can not be the entity that supports the act of improper assistance.
㈒ 피고는 정상금리와 할인율 사이에 1%의 차이만 있어도 지원행위라고 보았으나 세법 등 다른 법령에서 있어서의 부당성 요건과 균형상, 적어도 30% 이상의 차이가 나는 경우에만 “현저히” 차이가 있다고 보아야 할 것이다.
(2) “Lease of the instant production plant”
It was true that Samsung Industries used the TRT-L CD production plant of the Plaintiff Samsung CFE prior to its conclusion. However, this is because the agreement on rent between the Plaintiff and Samsung Industries was delayed due to the difference between the two parties, not the delay in concluding a lease contract. The main difference between the two parties was about the interest rate on the expenses invested in the establishment of a factory. The above Plaintiff claimed 17.36% of the corporate bonds interest rate with the three-year maturity and 12.4% of the annual average loan interest rate, and the difference between the interest accrued therefrom was 6.1.8 billion won. It was difficult to conclude that the above agreement was reached on the rent between the Plaintiff and the above 1.36% of the total annual loan interest rate and the above 12.4% of the loan interest rate.
In addition, the above amount of support is merely 0.02% compared to the assets of Samsung Electronic, and 0.003% compared to the sales, and thus, it cannot be said that the fair trade in the market is likely to be impeded.
On the other hand, even if "the rent of the production plant of this case" was an unfair support act, the defendant recognized that the above plaintiff received rent from January 3 to April 27 of the same year, and calculated the amount of subsidy on the premise that the 89 days delayed as well as the 1st month, and the 2nd month, and the 30th month, respectively. However, the above calculation was erroneous, since it did not delay only 58 days for the second month and 30 days for the third month.
(3) “The instant loan”
㈎ 원고 삼성랜드가 무진개발에 대한 대여금의 이자를 일부러 회수하지 않은 것이 아니라, 골프장 사업을 추진 중이던 무진개발이 1997년 때마침 불어닥친 IMF경제위기로 인하여 골프회원권을 분양할 수 없어 재정사정이 악화되는 바람에 위 원고가 이를 회수할 수 없었던 것이다. 또한 피고가 이 사건 처분에서 무진개발에 추가로 대여하였다고 본 86억 4,200만 원은 신규 대여가 아니라 부당지원행위에 대한 규제가 입법되기 이전인 1996년에 이미 무진개발에 대여하였던 대여금의 상환기일을 1997년말에 이르러 위와 같은 특별한 경제사정 때문에 부득이 연장하여 주었던 것에 불과하다.
㈏ 한편 연포레져에 대한 금전 대여는 연포레져를 지원하고자 하는 것이 아니라 연포레져가 제3자에 부담하고 있는 대출금 채무를 상환하도록 자금을 지원함으로써 우선 부도를 면하도록 하여 연포레져를 정상화시킨 후 위 원고가 연포레져에 출자한 자본금을 회수하기 위한 것이다. 즉 위 원고는 자신의 투자금 회수 및 사업정리의 방법으로 금전을 대여한 것이지 연포레져를 지원하려고 한 것이 아니다.
In addition, the interest rate on the above loan was 3% higher than the average loan rate of the above plaintiff 17%, so it cannot be said to be a lower interest rate. Since there is no other business operator who competes with the accommodation market in the annual area, there is no other business operator who competes with the annual entertainment market, the above financing can not affect the market.
In addition, as the former is a 100% subsidiary as well as the former plaintiff's 100% subsidiary as the former plaintiff's 100% subsidiary, so it cannot be an object of unfair support act.
(4) “Lease of the instant automobile sales place”
The plaintiff Samsung Samsung P&M and Samsung Fire entered into a provisional contract with Samsung C&T to lend part of their own buildings to Samsung C&T as a car seller, and the rent was paid on the date of the provisional contract as of the date of the commencement of the lease contract when the Samsung C&T enters into this contract at the time of commencement of its business. This is merely an industrial practice for leasing the first floor of the large building, the rent of which is high or high, and which can be occupied by the company, and it was also treated as the same as the case for other occupants. In addition, at the time of the IMF economic crisis, it was difficult for tenants to seek rent by giving up their business or reducing the rent area, and thus, they did not have any circumstance to claim interest for the delayed payment of rent from the time of this contract to the time of this contract.
On the other hand, the plaintiff Samsung Heavy Industries was likely to include the building leased to Samsung Heavy Industries in the assets subject to transfer in the course of the agreement on the transfer of business with the plaintiff Samsung Heavy Industries at the time, and the above plaintiff itself has suspended the receipt of deposit and monthly rent until the building is determined to be excluded from the object of transfer. Thus, the plaintiff Samsung Heavy Industries did not have the right to claim interest in arrears against Samsung Heavy Industries.
In addition, the amount of total support amount of KRW 239 million recognized by the Defendant is 0.03% compared to the assets of Samsung C&T and is 0.008% compared to the sales amount, and the amount of support amount is the only amount of 0.008% compared to the sales amount, Samsung C&T shall not be deemed to have made it more favorable competition conditions than the competitor in the
(5) “Lease of the International Training Institute” and “lease of the Korea Youth Training Institute”
The plaintiffs, who are the lessees of the above training institute, actually make a joint investment in the above training institute rather than leasing it from the Samsung C&T or Samsung Heavy Industries, the owner of the above training institute. In order to avoid the issue of authorization and permission, joint construction, transfer of building shares, and various tax issues arising therefrom, the plaintiffs, who are the lessees of the above training institute, are first constructed in the sole name of Samsung C&T or Samsung Heavy Industries, and the remaining plaintiffs jointly make a joint investment in the form of lease.
In particular, since the International Training Institute entered into a five-year contract as of the end of 1994 prior to the enactment of the unfair support act, the measure of this case applying the provision to the remaining contract term after the enforcement of the provision on unfair support act is detrimental to legal stability as the retroactive application of the law.
In addition, even if the above transaction relationship is not a joint investment but a lease relationship, the rent paid by the above plaintiffs cannot be deemed as significantly higher than normal rent. The amount of support recognized by the defendant is limited to 0.054% compared to the assets of Samsung Heavy Industries, 0.014% compared to the sales amount, and it is merely 0.06% compared to the assets of Samsung Heavy Industries, and 0.1% compared to sales amount, and thus, fair trade damage exists.
(6) Other
Even if the plaintiffs' family activity is an act of unfair support, the disclosure order part refers to the plaintiffs' reputation and credit accumulated in Korea and abroad, and this is premised on the "Publication of Violation of Law" under Article 24 of the Act, so long as the Constitutional Court has declared a decision of unconstitutionality on this matter, the above disclosure order cannot be issued before the new ground provision is enacted, and the "other measures necessary for correction" under the same Article refers to measures to restore the state of specific violation that occurred in the past, and therefore, it cannot be deemed that the changed ex officio disclosure order of this case constitutes such order. In addition, the plaintiffs' penalty surcharge up to 70% of the amount of support amount is excessive compared to the degree of violation of law.
(b) Related statutes;
Monopoly Regulation and Fair Trade Act (amended by Act No. 5814 of February 5, 199)
Article 23 (Prohibition of Unfair Trade Practices) (1) No enterpriser shall commit any act which falls under any of the following subparagraphs, and which is likely to impede fair trade (hereinafter referred to as "unfair trade practices"), or have an affiliated company or other enterprisers perform such act:
7. Unfairly supporting a person with a special interest or other companies by providing advanced payment, loans, human resources, real estate, securities, intangible property rights, etc. or by transacting under substantially favorable terms and conditions;
(2) Types of or criteria for unfair trade practices shall be prescribed by Presidential Decree.
Article 24 (Prohibition of Unfair Trade) The Fair Trade Commission may order the enterpriser concerned to discontinue the unfair trade practices, to delete the provisions of the contract, to publish the violation of the Act, or to take other measures necessary to correct the violation, when there is an act in violation of the provisions of Article 23 (1).
Where any unfair trade practice is committed in violation of the subparagraphs of Article 23 (1), the Fair Trade Commission may impose upon the enterpriser concerned a penalty surcharge not exceeding the amount obtained by multiplying the turnover determined by Presidential Decree by 2/100.
Article 55-3 (Imposition of Penalty Surcharges)
(1) In imposing penalty surcharges under this Act, the Fair Trade Commission shall take into account the following matters:
1. Details and severity of the violation;
2. Period and frequency of the violation;
3. Scale, etc. of profits acquired by the violation.
Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 16621 of March 31, 199)
Article 9 (Methods of Calculation of Penalty Surcharges) (1) The term “sales determined by the Presidential Decree” in the main sentences of Articles 6 (Methods of Calculating Penalty Surcharges), 22 (Penalty Surcharges), 24-2 (Penalty Surcharges), 28 (2), 31-2 (Penalty Surcharges) and 34-2 (Penalty Surcharges) of the Act means average sales of the enterpriser concerned for the three business years immediately preceding the business year (hereinafter referred to as “standard sales for imposing penalty surcharges”): Provided, That where three years have not elapsed since the commencement of business as of the first day of the business year concerned, it means the amount computed by converting the sales of the enterpriser concerned from the last day of the business year immediately preceding the commencement of business into annual average sales, and where business has commenced in the business year concerned, it means the amount computed by converting the sales from the date of commencement of
(2) Other matters necessary for calculating the standard turnover for imposition of penalty surcharges shall be determined by the Fair Trade Commission.
Article 36 (Designation of Unfair Trade Practices) (1) Types of or criteria for the unfair trade practices under Article 23 (2) of the Act shall be as shown in attached Table 1.
[Attachment 1] Types of and Criteria for General Unfair Trade Practices (Related to Article 36 (1))
10. Support for improper funds, assets, and human resources;
"Act assisting a person with a special interest or another company by providing advanced payment, loans, human resources, real estate, securities, intangible property rights, etc. to a person with a special interest or another company, or by transacting under substantially favorable terms" in Article 23 (1) 7 of the Act means an act falling under any of the following items:
(a) Unfair financial assistance;
An act of assisting a person with special interest or other companies by providing or trading funds, such as provisional payments or loans, for remarkably low or high prices, or by providing or trading on a conspicuous scale and providing excessive economic benefits.
(b) Unfair asset support;
An act of assisting a person with a special interest or other companies by providing or trading assets, such as real estate, securities, intangible property rights, etc., with remarkably low or high prices, or by providing or trading at a significant scale, with excessive economic benefits.
(c) Unreasonable personnel support;
An act assisting a person with special interest, or another company by providing excessive economic benefits by providing human resources to the person with special interest, or other company at remarkably low or high prices, or by providing excessive economic benefits.
Article 61 (Standards for Imposition of Penalty Surcharges)
(1) Types and standards for imposing penalty surcharges under Articles 6 (Penalty Surcharges), 17 (Penalty Surcharges), 22 (Penalty Surcharges), 24-2 (Penalty Surcharges), 28 (Penalty Surcharges), 31-2 (Penalty Surcharges) and 34-2 (Penalty Surcharges) of the Act are as shown in attached Table 2.
(2) The amount calculated pursuant to paragraph (1) may be increased or decreased, taking into consideration the matters falling under each subparagraph of Article 55-3 (1) of the Act.
[Attachment 2] Criteria for Imposition of Penalty Surcharges by Category of Violations (Related to Article 61(1))
8. Standards for imposing penalty surcharges on the violation of the Act, which is included in the main sentence; 8. Where the amount of support can be calculated under Article 23 (1) 7 of the Act, if it is difficult or impossible to calculate the amount of support within the relevant amount of support, it shall not exceed 10/100 of the amount of
(c) Markets:
(1) Determination on “instant specified money trusts”
㈎ 다음의 사실은 당사자 사이에 다툼이 없거나, 갑 제5 내지 10호증(가지번호 있는 것은 가지번호 포함, 이하 같다.), 을 제3 내지 9호증, 을 제51 내지 62호증의 각 기재와 각 사실조회결과에 변론 전체의 취지를 종합하면 이를 인정할 수 있다.
① A specified money trust is characterized by the trustor’s instructions, and even if the contract does not designate or designate a outline on the subject of investment, it does not actually comply with the customer’s request, such as Plaintiff Samsung Bio-resources, to attract large amounts of funds, such as a specified money trust in the future.
② The above Plaintiff’s subscription to a specified money trust and the purchase of commercial papers by the trustee bank and the Defendant’s disposition of this case are:
③ Although corporate papers, such as Samsung Motor, etc., were not necessarily included in the assets incorporated into a specified money trust that the Plaintiff joined, the internal parts for the purchase of corporate papers by the consignment bank indicate that the money for specified money trust is the purchase fund, and the consignment bank may also purchase corporate bills using trust funds, other than the relevant specified money trust funds.
(4) The earning rate of a specified money trust is only the expected earning rate that the entrusted bank expected and presented to the trustor, not the finalized earning rate.
⑤ Even if there is a change in the discount rate of commercial papers during a certain period between the Plaintiff and the consignment bank, there are many cases where the so-called “observer CP transaction agreement” was concluded between the consignment bank and the consignment bank to continue to repurchase commercial papers at the discount rate as originally agreed.
Demark 9> Samsung Motor Vehicle CP purchase part
(unit: million won)
본문내 포함된 표 매입은행 금액(A) 회 전 기 간 일수(B) 실제할인율(C) 정상할인율(D) 차이(E)(=D-C) 지원금액(F) 원 심 결 지원금액 재산정 증감액 조 흥 20,000 1997-05-02 1997-08-01 91 12.43 13.2 0.77 ? ? ? ? 20,000 97-08-01 97-10-31 91 12.43 12.5 0.07 ? ? ? ? 20,000 1997-10-31 1998-01-30 91 12.43 14.7 2.27 113.19 114 ? ? √ 20,000 1998-01-30 1998-04-30 90 12.45 25.5 13.05 643.56 644 644 ? 10,000 1997-06-09 1997-09-09 92 12.1 11 -1.1 -27.73 -27 ? ? 10,000 1997-09-09 1997-12-08 90 12.09 13.6 1.51 37.23 37 ? ? √ 10,000 1997-12-08 1998-03-09 91 12.09 24.75 12.66 315.63 315 315 ? √ 10,000 98-03-09 98-06-09 92 12.56 26.5 13.94 351.36 362 362 ? 소 계 ? ? ? ? ? ? ? 1,433 1,445 1,321 △124 서 울 10,000 1997-06-30 1997-09-29 91 11.71 11.7 -0.01 ? ? ? ? 10,000 1997-09-29 1997-12-29 91 11.71 14.5 2.79 69.56 70 ? ? √ 10,000 1997-12-29 1998-03-30 91 12.18 38.5 26.32 656.2 656 656 ? √ 10,000 1998-03-30 1998-06-03 92 11.7 25 13.3 335.23 335 335 ? 소 계 ? ? ? ? ? ? ? 1,061 1,061 991 △70 제 일 20,000 1997-05-22 1997-08-21 91 12.4 12.6 0.2 ? ? ? ? 20,000 1997-08-21 1997-11-21 92 12.45 14 1.55 78.14 ? ? ? 20,000 1997-11-21 1998-02-20 91 12.5 18.95 6.45 321.62 321 ? ? √ 20,000 1998-02-20 1998-03-31 39 18.5 28 9.5 203.01 203 203 ? √ 20,000 1998-03-31 1998-05-22 52 16.5 25 8.5 242.19 242 242 ? 소 계 ? ? ? ? ? ? ? 845 766 445 △70 한 미 10,000 1997-08-04 1997-11-04 92 11.84 12.54 0.7 ? 0 0 ? √ 10,000 1997-11-04 1998-02-04 92 11.84 15.05 3.21 80.91 80 ? ? √ 10,000 98-02-04 98-05-04 92 11.84 25.5 13.66 333.08 333 333 ? 소 계 ? ? ? ? ? ? ? 414 413 333 △80 상 업 20,000 1997-05-29 1997-08-29 92 12.25 12.3 0.05 ? ? ? ? 20,000 1997-08-29 1997-11-28 91 12.25 13.8 1.55 77.29 77 ? ? √ 20,000 1997-11-28 1998-02-27 91 12.25 22 9.75 486.16 486 486 ? √ 20,000 1998-02-27 1998-03-27 28 13.2 24.42 11.22 172.14 172 172 ? √ 20,000 1998-03-27 1998-03-31 4 13.2 22.3 9.1 19.95 18 18 ? √ 20,000 1998-03-31 1998-07-01 92 14.72 25 10.28 518.22 518 518 ? 127 1998-03-31 1998-07-01 92 14.7 25 10.3 3.3 3 3 ? 304 1998-03-31 1998-07-01 92 14.7 25 10.3 7.89 7 7 ? 1,304 1998-03-31 1998-07-01 92 14.7 25 10.3 33.85 34 34 ? 소 계 ? ? ? ? ? ? ? 1,319 1,315 1,238 △77 동 화 10,000 1997-06-30 1997-09-29 91 11.71 11.7 -0.01 ? ? ? ? 10,000 1997-09-29 1997-12-29 91 11.71 14.5 2.79 69.56 69 ? ? √ 10,000 1997-12-29 1998-03-30 91 12.18 38.5 26.32 656.2 656 656 ? 10,000 1997-07-28 1997-10-28 92 12.1 12.2 0.1 ? ? ? ? 10,000 1997-10-28 1998-01-26 90 12.1 14.7 2.6 64.11 65 ? ? √ 10,000 1998-01-26 1998-04-27 91 12.1 28.5 16.4 408.88 408 408 ? √ 10,000 1998-03-30 1998-06-30 92 11.7 25 13.3 335.23 335 335 ? 소 계 ? ? ? ? ? ? ? 1,534 1,533 1,339 △134 보 람 10,000 1997-05-30 1997-08-29 91 11.92 12.3 0.38 ? ? ? ? 10,000 1997-08-29 1997-11-28 91 11.92 13.8 1.88 46.87 47 ? ? √ 10,000 1997-11-28 1998-02-27 91 11.92 22 10.08 251.31 251 251 ? √ 10,000 1998-02-27 1998-05-29 91 12.19 27.5 15.31 381.7 381 381 ? 소 계 ? ? ? ? ? ? ? 680 679 632 △47 ? ? ? ? ? ? ? 지원금합계 7,285.86 7,212.00 6,359 △853 ? ? ? ? ? ? ? 과징금액 5,100.10 5,048.40 4,451 △597
＋ : The part recognized as an unfair support act in the instant disposition, hereinafter referred to as ‘Ban 10>, ‘Ban 11>
Table 10> Samsungland CP purchase section
(unit: million won)
The difference (F) between the number of days (C) at the discount rate (D) (E) for the individual discount rate (D) (E-D) amount prior to the filing of the purchase bank amount included in the main sentence (E-D) (i.e., daily ＋ 22,400 197-09-29 1997-12-29 on December 3, 15, 191, 252, 129 May 32, 1295 : 87 ± 22,40 east 1297-129 - 29 - 29 1997-129 - 29 - 1998-1998- 04- 0193 - 5 December 28, 25, 1916, 75 △△△△△△△△ 7165 - 79 ? 584 ? 584 5 485 5 5 5 4 1984 ;65 5 4 4 84 ;
[Attachment 11] CP purchase portion of the So-called So-called CP purchase
(unit: million won)
The number of days before the end of the ticket purchase bank amount, which is included in the main text, the amount of increase or decrease of the amount of support for the difference in the actual normal discount rate of the committee x 20,000 x 1998-03-30 x 1998-06-30 92 December 82, 25, 2512. 18, 614. 614 x 614 x 614 x 614 x ?? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 4298 430 x 430 ? 430
㈏ 위 인정사실에 의하면 비록 구체적인 연계에 대한 확증은 없으나, 위 원고는 위 은행들에 특정금전신탁을 하고 위 은행들과 옵션 CP거래 약정을 맺어 그들로 하여금 특정금전신탁자금을 원천으로 위 원고가 지정하는 삼성자동차, 삼성랜드 및 한솔제지가 발행한 기업어음을 정상할인율보다 낮은 할인율로 매입하도록 하였다고 넉넉히 추단할 수 있다. 이에 대하여 위 원고는 옵션 CP거래 약정 때문에 시중 금리가 인상되었음에도 여전히 종전의 금리 정도의 할인율로 매입할 수밖에 없었다는 취지의 주장을 하나 위 옵션 CP거래 약정 자체가 지원객체에 대한 안정적인 지원을 염두에 둔 것이라고 할 것이고, 지원객체를 염두에 두지 않는다면 위 원고와 수탁은행과의 관계상 IMF경제위기와 같은 예상치 못한 사태에 직면하여 위 옵션 CP거래 약정의 내용을 변경할 여지도 있다고 할 것이므로 위 주장은 이유없다. 또한 〈표9〉의 상업은행이 매입한 1억 2,700만 원, 3억 4백만 원, 13억 400만 원의 소위 ‘자투리 CP’도 같은 맥락에서 상업은행이 적어도 위 원고의 묵시적 지시에 따라 행동한 것으로 보인다.
Therefore, the “specified money trust in this case” is an act of improper asset support, since the said Plaintiff purchased commercial papers bypassing a specified money trust through a specific money trust, and as such, the said company could form, maintain, and strengthen its status as an operator with significant influence in the relevant market.
㈐ 한솔제지 기업어음 매입
However, in full view of evidence evidence Nos. 40 through 50, evidence Nos. 61 through 71, evidence Nos. 61 through 71, and witness-only testimony, the court below acknowledged that the part of the "specified money trust" among the above corporations was acquired through a specific money trust of the commercial banks and the part of the commercial bank's acquisition of corporate bills issued in the same amount is in a quid pro quo relationship with the above plaintiff's payment of insurance premiums. The above plaintiff also engaged in the so-called "corporate business," which requires the above plaintiff to obtain loans through a specific money trust in the same manner as with the Mochina corporation, Daewoo Heavy Industries, Dong Construction, Hyundai Petroleum Chemical Co., Ltd., Ltd., which subscribed to the above group insurance, and it is similar to the above company's offering discount rate at the time of receipt of corporate bills. Thus, the part of the "specified money trust" of the above corporation's acquisition of corporate bills in the "specified money trust" can not be seen as an unfair act related to the plaintiff's business operation in the market.
㈑ 현저성
Meanwhile, an unfair support act is established only when it engages in a transaction with “any remarkably low or high price,” and there is a difference between normal interest rates and discount rates. It is insufficient to deem that the mere existence of a difference between normal interest rates and discount rates meets the requirements of substantialness. In full view of the legislative purpose and purport of the Fair Trade Act regulating the unfair support act, market situation at the time of the transaction, transaction size, transaction process, etc., it refers to a case where there is a difference to the extent that it cannot be deemed a normal transaction to be done by a reasonable economic person unless the act is performed for the support of a related party, etc... In the judgment following the plaintiffs' objection, the result of the original decision that recognized the acceptance of commercial papers before the IMF economic crisis as an unfair support act according to the difference between normal interest rates and discount rates is the first day after the IMF economic crisis (see, e.g., Table 9)., this seems to be a reasonable standard for determining the substantialness of the unfair support act (see, e., Table 9).
However, from September 29, 197 to December 29, 1997, the part that purchased Samsungland Issuance CP in an amount equivalent to KRW 22.4 billion from September 29, 1997, which is the revolving period, does not meet all the starting criteria or the criteria for difference of interest rate, and thus, this part does not satisfy the requirements for substantialness. Thus, the part of the disposition in this case is illegal.
(2) Determination on the “lease of the Production Factory of this case”
In full view of Gap evidence Nos. 11 through 16, Eul evidence Nos. 12 through 29, and the testimony of the witness nominated consent, Samsung Industries used the TFT-L CD production plant owned by the plaintiff Samsung Este from January 1998, but concluded a lease contract late after April 15 of the same year. Even if Samsung Este already started the use of the above factory, the above lease contract delayed as above, the above plaintiff's interest rate on the construction cost of the above plaintiff Samsung Estes was 17.36% corporate bonds with the maturity of 3 years, and Samsung Estes tried not to reach an agreement on rent early, 12.4% with annual average interest rate of 12.6 billion won, while the difference between the above interest rate and the actual interest rate of Samsung Estes was 61.8 billion won, it cannot be viewed that the above agreement was reached with the plaintiff's payment of rent to the above 300 million won or 5.5 billion won.
If so, there is no evidence that "the lease of the manufacturing plant of this case" provided a certain economic interest to Samsung pre-owners, so it cannot be an unfair support act without determining the remainder of the above plaintiff's remaining arguments.
(3) Determination on “the instant loan”
Considering the overall purport of the arguments in Gap evidence Nos. 17 through 21, Eul evidence Nos. 10, Eul evidence Nos. 30 through 32, and Eul evidence Nos. 30 through 32, the court below held that the defendant's capital was de facto impossible to borrow funds from the outside. The plaintiff Samsungland could recognize the fact that the above company did not recover interest from the above company or borrowed funds at a low interest rate. On the other hand, since the plaintiff Samsung Heavy Development, which was promoting the golf course business, could not sell the above plaintiff's interest to the above plaintiff due to the 197 IMF economic crisis, it could not be repaid because it was impossible to sell the golf course due to the above plaintiff's interest without a new loan, and since the defendant's additional loan to the 8.64 billion won and 2 million won which was deemed to have been granted by the disposition of this case, it cannot be acknowledged that the remaining portion of loan No. 1996, Dec. 19, 199.
However, according to the facts found above, the above plaintiff's new loan to Spores is an act that could interfere with the withdrawal of the above company in the field of comprehensive recreation or accommodation business, which is a related market, due to the support of funds to the above company at the time of retirement. Accordingly, the above plaintiff's act of improper support is not intended to support the recovery of its investment funds and business adjustment by allowing Spores to be exempted from preferential payment. However, the above plaintiff's act of improper support is not a mere regulation of the place of artificial retirement by the above support, so the above argument is not a confession of the unfair support act. In addition, whether the above loan interest rate is higher or lower should not be based on the average interest rate of the above plaintiff's loan, but on the basis of a smoke that cannot be properly borrowed as the support company, and the related market for Spores does not define only the area, and there is no competitor in the pertinent market. Thus, all of the above plaintiff's assertion that there is no competitor in the above market.
Furthermore, the above plaintiff's 10% subsidiary of the above plaintiff's 100% as the above plaintiff's 100% is the same as the above plaintiff's economic body, and therefore, it cannot be the object of the unfair support act. However, since the company's act as an economic same body causes a lot of harm in competition policy, the "Act" aims to regulate it as an unfair support act, this argument
(4) Determination on “the instant car sales center lease”
First of all, in light of the health stand, Gap's evidence Nos. 23, 24, 26, Eul's evidence Nos. 54 through 11, and Eul's witness's testimony as to Samsung Bio-resources and Samsung Fire, the above plaintiffs concluded a provisional contract with the first priority while leasing part of the building owned by them across the country to Samsung C&T as a car seller and allowing Samsung C&T to build the store facilities within the shop, and the first floor of the large building with high rental fees and limited occupancy enterprises to rent for the first floor of the above type of lease contract. In particular, since it is difficult for the above plaintiffs to determine illegality of the above type of lease contract without any economic reason, it is not easy for them to acknowledge that the above lease contract was unfair, such as waiver of the business or reduction of the lease area after the commencement of the business of Samsung C&T, which is an affiliated company and the first floor of the above type of lease contract.
However, in full view of the statements in Gap evidence Nos. 25 and Eul evidence Nos. 11 and the purport of the whole pleadings in the testimony of Kim Jong-young, the plaintiff Samsung Heavy Industries leased one automobile-related facility newly built to use its own equipment A/S and factory site to Samsung Heavy Industries on January 31, 1998. Unlike the above plaintiffs' above plaintiffs, although it was definitely leased it without any provisional contract, it shall be paid the lease deposit and rent under the lease contract on May 15, 1998. The delayed receipt of the above lease deposit can be included in the assets subject to transfer, so it can be acknowledged that the above building could be included in the above lease contract during the consultation process until the above building is determined to be excluded from the object subject to transfer. However, the plaintiff's own reason for the above receipt of the lease deposit and monthly rent cannot be viewed as a subjective circumstance of the above plaintiff, which is the support entity, and thus, it cannot be viewed as a delayed delivery of the real property at a lower price than the above plaintiff's subjective reason.
(5) Determination on “lease of International Training Institute” and “Lease of Korea Youth Training Institute”
In fact, Plaintiff Samsung F&E (hereinafter “Plaintiff et al.”)’s assertion that the Plaintiff et al. owned Samsung C&T or Samsung Heavy Industries (hereinafter “T&T”) and the aforementioned training institute jointly, but in form, the Plaintiff et al. shared ownership of Samsung C&T and the aforementioned training institute, and the Plaintiff et al. shared the cost of establishing, operating, and managing Samsung C&T, the Plaintiff et al. should have collected all of the purchase cost and building construction cost of the above training institute’s land from the Plaintiff et al. according to the share ratio of the Plaintiff et al., and there is insufficient evidence to acknowledge this. Furthermore, in the case of disposing of the above training institute, the Plaintiff et al.’s purchase cost and building construction cost of the building should not be divided according to their respective share ratio, and there is no assertion or proof that the Plaintiff et al.’s act of leasing Samsung C&T should be divided, and thus, the Plaintiff et al.’s joint-owned investment training institute’s allegation that it is not a type or joint-owned.
The plaintiff et al. asserted that "the rent of the International Training Institute" is according to the five-year contract concluded at the end of 1994 prior to the enactment of the unfair support act, so the unfair support act cannot be established even for the remainder of the contract after the implementation of the provision on the unfair support act. However, unless there is any special transitional provision, the above assertion is without merit since the provision on the unfair support act newly enacted in the above continuous contract relationship is applied.
(6) Determination on other allegations
㈎ 공표명령
The Constitutional Court's decision that an order to publish a violation of the Act is unconstitutional (Supreme Court Order 2001HunBa43, Jan. 31, 2002) is interpreted and operated to mean that "the publication of a violation of the Act is recognized and announced by an actor himself/herself," even before a criminal trial commences. However, "the publication of a violation of the Act is made by the Fair Trade Commission due to the violation of the Act", which is distinguished from this concept, may be permitted since it can considerably reduce the degree of infringement on fundamental rights of the violator and minimize negative effects such as confusion caused by a mistake that may occur after a trial. In the event of a violation of the provisions of Article 23 (1) of the Act, the defendant, in light of the legislative form of Article 24 of the Act, "the publication of a violation of the Act" can be deemed to be "the publication of a violation of the Act" to be "the publication of a correction order under the Act on the Grounds that it loses its effect" and "the publication of a correction order under the Act on the grounds that it loses its effect."
In addition, the contents and degree of the above unfair support act does not seem to be easy, and there is a public interest need to publish the fact that the defendant received a corrective order in order to extinguish the effect of the illegal act and prevent the recurrence of the illegal act in advance. Therefore, it cannot be deemed that the defendant exceeded and abused the discretionary power by making the above order, in addition to the suspension order of the pertinent act, by giving the notice of the fact that the defendant received the corrective order.
㈏ 과징금
The details of the Defendant’s penalty surcharge imposed on the Plaintiffs are as shown in attached Table 12. This is within the scope prescribed in attached Table 24-2 of the Act and attached Table 2 of Article 61(1) of the Enforcement Decree, and there is no evidence to deem it as a deviation or abuse of discretionary power, and there is no reason to believe this part of the Plaintiffs’ assertion
3. Conclusion
A. If so, among the dispositions in this case listed in the separate sheet, the following parts shall be illegal and the remainder shall not be deemed unlawful (see attached Table 12> (Article 12 of the attached Table 12 of the attached Table, see, e.g., attached Table 12 of the attached Table, but the penalty surcharge for the part that purchased the Samsungland Issuance CP as the revolving period from September 29, 1997 to December 29 of the same year shall be deemed to be KRW 90,000,000, which the defendant recognized as the "property re-support amount" in the attached Table 10 of the attached Table 10 of the attached Table as the "property re-determination support amount."
(1) Part of the act of assistance to Handok Co., Ltd. in Paragraph (1) (specified money trusts in this case)
Shed paragraph 2 (Lease of Manufacturing Plant in this case)
•Article 3(3) of the Fund Lending;
㈎ 가항(무진개발 이자 미회수)
㈏ 나항(무진개발 자금 대여)
㈐ 다항 중 무진개발 주식회사에 대한 지원행위 부분
Applicant Part of the act of supporting the plaintiff Samsung Fire Marine Insurance Co., Ltd and the plaintiff Samsung Samsung Life Insurance Co., Ltd. among the act of leasing the automobile sales place.
(v) part related to paragraphs (a) through (d) above among those provisions of paragraph 7 (Order of Publication);
⑹ 제8항의 과징금 부과처분 중,
㈎ 원고 삼성에스디아이 주식회사에 대한 과징금 중 937,000,000원을 초과하는 부분
㈏ 원고 삼성화재해상보험 주식회사에 대한 과징금 중 351,000,000원을 초과하는 부분
㈐ 원고 삼성생명보험 주식회사에 대한 과징금 중 5,418,000,000원을 초과하는 부분
㈑ 원고 삼성에버랜드 주식회사에 대한 과징금 중 7,000,000원을 초과하는 부분
B. Therefore, the claims of the plaintiff Samsung F&E, Samsung Fire, Samsung Bio-resources, and Samsung Heavy are justified only within the scope of the above recognition. The remaining claims of the above plaintiffs and the claims of the plaintiff Samsung T&E, Samsung T&C, and Samsung Heavy Industries are dismissed as they are without merit. It is so decided as per Disposition.
Judges Lee Dong-bok (Presiding Judge)