(영문) 서울고등법원 2015.11.5. 선고 2014누6588 판결

The Defendant’s corrective order and penalty surcharge payment order in attached Form 1, which was issued by the Decision No. 2014-165 on July 28, 2014, against the Plaintiff, shall be revoked.

Reasons

1. Basic facts and circumstances of dispositions;

A. Status and status of the plaintiff, etc.

The plaintiff, GaS Construction Co., Ltd., Dongsung Engineering Co., Ltd., Hansung Engineering Co., Ltd., Han-han Global Co., Ltd. (hereinafter referred to as "six companies") are all engaged in the construction business, and individually, 'Plaintiff', 'SSS construction', 'Dongbu construction', 'zymba, 'zymba industry development', 'Korean Industrial Development' and 'Columba Construction'1 in case the remaining companies except the plaintiff among 6 companies are in compliance with the plaintiff) are all engaged in the construction business.

(b) The details of the public announcement of bids for construction works 3) facilities in the Kimpo-si City (hereinafter referred to as "tender for construction works in the Gimpo-si City") and tenders for construction works in the Nanyang-si Center facilities (hereinafter referred to as "tender for construction works in the Namyang-si");

(1) Summary of construction works and bidding procedures for Kimpo-maid.

A) Summary of the construction

• The name of the construction: 67,272,00,000 won (including value-added tax) and the construction budget for the facilities of the Green Center in the Kimpo-si City (hereinafter referred to as the "Gimpo-si City") and: 84 tons/day (42 tons x 2) of incineration facilities, 40 tons/day (20 tons x 20) of food resources-making facilities, 40 tons/day (20 tons) of construction period: 28 months (including three months of the comprehensive trial period) from the commencement date of construction, 3 months from the commencement date of construction (including three months of the comprehensive trial period): The basic design is 70 days from the date on which the basic design is selected and notified as the person eligible for the

B) Bidding Procedures

Public notice of May 6, 2009 ? Public notice of tender ? Application for Prior Examination on May 15, 2009 ? The site site conference on May 26, 2009 ? Bidding on August 6, 2009

(ii)a summary of construction works and tendering procedures for the South-North Korean construction works;

A) Summary of the construction

•The name of the construction: 56,00,000 won (including value-added tax) and the construction budget for the Czeyang Center facilities in Namyangju: 52 tons and days of incineration facilities, 31 ton/day of food and resource-making facilities, 31 ton of food and resource-making facilities, and construction location: 26 months (including three months of comprehensive trial operation period) from the commencement date of construction, and design period: 70 days from the date of notification of the selection of the person eligible for basic design for basic design: 90 days from the date of notification of the appointment of the person eligible for basic design for basic design.

B) Bidding Procedures

On May 14, 2009, the public notice ? the application for prior examination on May 28, 2009 ? the site site consultation ? the August 20, 2009 August 20, 2009

(iii) the bidding methods of Kimpo and South-North Korea Construction;

A) The Kimpo-m and the Southern-ju Construction (hereinafter referred to as the “each of the instant construction works”) are both design and construction works performed by a construction company as a package of design and construction works. Therefore, when the ordering company presents only the master plan for construction works and the tender guidance, the construction company participating in the tender will prepare basic design drawings and other necessary documents necessary for the execution of the relevant construction works and submit them along with tender documents, and the ordering company will select the final successful bidder. Each of the instant construction works was implemented in design and construction works as a package of design and construction works.

B) In the design and construction work as a whole, it is necessary to assess the design in addition to the price when determining a successful tenderer. There are several methods of determining a successful tenderer, but each of the above construction works is subject to the "Aggravation Standard Method", which is the method of evaluating the highest score after giving specific weight to the design score and the price score among the qualified persons, and then determining the highest score as a successful tenderer. The weight in each of the above construction works is 55 design score and 45 price score, respectively.

(c)A waste heating melting facility with a capacity of at least 30 ton/day within the last 10 years as of the date of the public announcement of tender shall be subject to application for prior examination in the field of construction by an enterprise which is currently operating normally after the completion of construction but has no record of performance, domestic and foreign enterprises which have the above performance and technical alliance (cooperative agreements).

d) Prior examination shall undergo an examination of the management status and the technical performing capabilities of construction works, and the technical performing capabilities shall be limited to those who meet the eligibility requirements in the management status sector.

C. Current status of bidding process of each construction of this case

1) On May 6, 2009, the Korea Land Corporation publicly announced the bidding process for Kimpo Construction. On May 6, 2009, the Korea Land Corporation participated in the bidding process by organizing a consortium as follows. On September 8, 2009, the Korea Land Corporation finally decided on the following as an eligible person for working plans:

2) On May 14, 2009, the Korea Land Corporation publicly announced the tender for the Namyang-ju Construction with the above contents. The Korea Land Corporation organized a consortium and participated in the said tender as follows, such as the construction, the Plaintiff, the Handong Industrial Development, the Dongbu Construction, and the filial duty. On September 18, 2009, the consortium was finally determined as the eligible person for the working design.

(unit: Won, per cent)

A person shall be appointed.

3) On September 21, 2009, the Korea Land Corporation entered into a contract for construction works with NAD construction consortiums and contract amount of KRW 63,870,400,00 (including value-added tax) with respect to the Kimpo Corporation. On November 5, 2009, the Korea Land Corporation entered into a contract for construction works with NAD construction consortiums and contract amount of KRW 53,116,00,000 (including value-added tax) with respect to the Namyang Corporation.

D. The defendant's disposition

1) On July 28, 2014, the Defendant issued a corrective order and a penalty surcharge payment order on the ground that the following acts (hereinafter referred to as “instant collaborative act”) of the Plaintiff constituted an unfair collaborative act prohibited under Article 19(1)8 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the “Fair Trade Act”), under Article 2014-165 of the plenary session’s resolution by the plenary session, against the Plaintiff (hereinafter referred to as “instant disposition”).

In relation to Kimpo-ro, six companies agree to form a consortium as shown in the foregoing table, to participate in the bidding formally at the bid price agreed in advance by the consortium for the development of Hanpo-ro industry so that the consortiums can receive the successful bid, and the plaintiff agreed not to participate in the bidding (hereinafter referred to as the "agreement for the bidding for the Mapo-ro project"), and in relation to the remaining Yangpo-ro project, six companies constitute a consortium as described in the above table, and the Dopo-construction consortiums agreed to participate in the bidding formally at the bid price agreed in advance in order to ensure that the Dopo-ro construction consortiums can receive the successful bid, and the Dopo-ro construction will not participate in the bidding (hereinafter referred to as the "Nampo-gu Construction consortium").

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 Enforcement Decree of the same Act, and the former public notice of detailed criteria, etc. for imposing a penalty surcharge (amended by Defendant Notice No. 2010-9, Oct. 20, 2010; hereinafter referred to as “public notice of penalty surcharge”), and the specific process for calculating the penalty surcharge is as follows.

A) Basic penalty surcharges

(1) Relevant sales

In relation to the collaborative act of this case, the ZS Construction consortium entered into a contract for the construction work with the bid for Kimpo Construction Project and the consortium for Koyang Construction Project with each successful bid for the Namyang Construction Project. The sales related to the collaborative act of this case shall be deemed to be the contract amount which the ZS Construction consortium and the Zok Construction consortium entered into for the first time in relation to each of the construction works of this case.

(2) Standard imposition rate

Inasmuch as it is obvious that the collaborative act in this case results in only competition-restricting effects due to the nature of bid collusion, and considering the fact that the Cream Center Facility Corporation, which is the object of the collaborative act in this case, has a significant impact on the finance of the State and local governments, it constitutes a 's significant violation' and public notice of penalty surcharge IV.1.C. (1)(a) applies 10% of the base imposition rate under paragraph (1).

(3) Criteria for calculation

The relevant sales revenue amounting to 58,064,00,000 won (excluding value-added tax) shall be multiplied by 10%, and the Plaintiff did not participate in the bidding of Kimpo Corporation according to the agreement, so public notice of penalty surcharge shall be 4,828,72,727 won (excluding value-added tax) multiplied by 10%, and 2,903,200,000 won, which has been reduced by 1/2 of the calculation criteria pursuant to the provisions of paragraph (1)(e)(2) of this Article, and 4,828,72,727,2727 won (excluding value-added tax) shall be determined based on each calculation basis.

(b)the primary coordination by an element of action;

The basic penalty surcharge is the first adjustment calculation criteria because there is no reason to adjust due to the period and frequency of violation, etc.

C) Second co-ordination by elements of the actor

The plaintiff actively cooperates in the investigation by recognizing the fact of violation in the course of the investigation, such as aiding in the judgment of illegality, etc., so 20% of the first adjustment criteria shall be mitigated.

D) Determination of imposition penalty surcharges

The Plaintiff participated in the bidding by organizing a joint supply and demand organization, and the share of the Plaintiff is merely 28% of the total amount of unjust enrichment. Accordingly, 20% of the standard for the second adjustment shall be reduced. The Plaintiff’s average net income for the immediately preceding business year, the preceding business year, and the preceding business year as of the date of deliberation of the instant case on the financial statements finalized by the Plaintiff, shall be reduced by 50% in consideration of the fact that the average weighted amount of net income for the immediately preceding business year, the preceding business year, and the preceding business year is insufficient to have actual ability as a enemy, and 2,320,000,000 shall be imposed penalty surcharges

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 and 2 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion on the bid collusion for Kimpo-ro

The Plaintiff waived from participating in the bidding of each of the instant construction works on the technical and human resources condition, but around April 2009, at the Doste Construction and Corna Construction, the Plaintiff accepted the request from Doste Construction to participate in the bidding of Hayang Construction, and no agreement was reached with Doste Construction, etc. on the non-participation of the bidding of Mayang Construction, and no agreement was reached on the non-participation of the bidding of Manpo Construction, etc., and the Plaintiff did not participate in all of the agreements in the process of the bidding price and bidding price after the six major meetings.

2) As to the order to pay the instant penalty surcharge

The instant penalty surcharge payment order is unlawful because it deviates from and abused discretionary power for the following reasons.

A) The illegality in calculating the relevant sales amount

(1) The Plaintiff was a business operator who was originally planned to participate in the tender for the Southern Yangyang Construction Project and was not anticipated to participate. Even if there was an agreement on the Plaintiff’s failure to participate in the tender for Kim Yangyang Construction Project, if the Plaintiff obtained the status of a consortium as a consortium for the Nam Yangyang Construction Project in return for the agreement, it is accepted as a price for the agreement, and therefore, the part concerning the Nam Yangyang Construction project should be excluded from the relevant sales amount.

(2) Even if the Plaintiff’s collusion is recognized with respect to all of the instant construction works, in light of the fact that the instant case does not have any structural difference with the case of the agreement on the division of a construction section, the relevant sales should be limited to the portion of the Namyang Construction Work.

B) Violation of the application of the imposition standard rate

The instant collaborative act was committed in the course of receiving cooperation from other enterprisers under the lead of china Construction and china Construction. Even if the Plaintiff participated in an unfair collaborative act, it would be too excessive to apply the imposition rate of 10%, which is the highest to the Plaintiff, considering the degree of the Plaintiff’s participation as the same as china Construction and china Construction, which is the lead of the Plaintiff’s participation. In addition, the degree of the Plaintiff’s participation is obvious difference with the other enterprisers who participated in it.

C) Illegal conduct that did not consider mitigation by simple participation

The penalty surcharge against the Plaintiff should be mitigated in light of precedents and the details of penalty surcharges, as the Plaintiff took part in the collaborative act of this case simply or carried out an abstract role.

D) Violation of the decision of imposing penalty surcharge

(1) The Plaintiff merely accepted the proposal as to whether he will participate as a member of the consortium in the 2nd group of six companies, and did not participate in the 2nd group of the 2nd group of the Namyang Construction Project, but did not participate in the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2nd group of the 2

(2) In addition, the Plaintiff’s participation in the instant collaborative act is extremely low, and the Plaintiff responded to the Plaintiff’s passive request, and the benefits acquired in relation to the Kimpo-sul Construction did not transfer to all others, and the Defendant arbitrarily decided to impose penalty surcharges.

(b) the relevant provisions;

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Determination as to the assertion on the bid collusion for Kimpo-ro

A) Facts of recognition

(1) around March 2009, the public announcement date of each of the instant construction works, A and Calul Construction B set forth a general discussion on each of the instant construction works, which was prior to the public announcement date of each of the instant construction works, and set forth the organization of the successful bidder and the public tender participants (one-time called “one-time public tender participants”) with the consortium.

(2) At the end of April 2009, the plaintiff C took part in 6 meetings as to the bidding of each of the instant construction works since 'C' had a six group of members in relation to the bidding of the instant construction works,' and 'C' attended a six group of members in contact, and at that place, the plaintiff will participate in the bidding of NAS construction and Copul construction, and the plaintiff will be a member of the consortium in the bidding of South Yangyang-ju Corporation without participating in the bidding of NAS construction and Copul construction.' Accordingly, the above discussion was decided to participate in the bidding, including 'C', and accordingly, the plan for construction of chip construction and Copul construction, such as the contents of the above discussion, was finalized.5)

(3) As can be determined as above, at each of the instant construction contracts, NAS construction consortiums, Copy construction consortiums, and Russiums’ participation in the bidding, and at the bidding for Kimpo Construction, NAS construction consortiums were finally determined as qualified for design in the bidding for Nampo Construction, and all of the contracts for each of the construction contracts concluded with the Korea Land Corporation as seen earlier.

[Reasons for Recognition] Gap's evidence Nos. 6 through 9, Eul's evidence Nos. 1, 3 through 6, 8 through 10, and the purport of the whole pleadings

B) Determination as to whether the Plaintiff’s failure to participate in the bid for Kimpo Corporation

(1) The "unfair collaborative act" prohibited under Article 19 (1) of the Fair Trade Act is an agreement on an act that unfairly limits competition, and at this time, the "agreement" includes not only the express agreement but also implied agreement. However, since the essence of the agreement is that two or more enterprisers communicate with each other, it cannot be recognized as a matter of course because there is an appearance consistent with the "unfair collaborative act" listed in each subparagraph of the above provision, and there must be proof of circumstances to recognize the reciprocity of communication between enterprisers, and the burden of proof on such agreement is against the defendant who orders corrective measures, etc. (see, e.g., Supreme Court Decision 2013Du16951, Jul. 24, 2014).

(2) In light of the above-mentioned legal principles by comprehensively taking account of the above-mentioned facts and the above-mentioned evidences, it can be sufficiently recognized that the plaintiff agreed not to participate in Kimpo Corporation at the above 6 groups. In this regard, it is reasonable to view that the plaintiff obtained the share of a consortium in the construction of joint ventures, who is in the position of the successful bidder of Yangyang-ju Corporation. The plaintiff's above assertion is without merit.

(A) In the course of the discussion on March 2009, A and Culul Construction B recognized the Plaintiff as a potential competitor for each of the instant construction works, instead of allowing the Plaintiff to not participate in the bidding on Kimpo Construction, granted the Plaintiff as a member of Culul Construction consortium in the tender on the Namyang Construction Project instead of allowing the Plaintiff to participate in the bidding on Kimpo Construction, thereby obtaining a successful bid on the instant construction works, and thereby granting the Plaintiff as a member of Culul Construction consortium.

(B) In fact, prior to the public announcement of the tender of each of the instant construction works, the Plaintiff was able to participate in the tender for the construction works similar to each of the instant construction works by combining technology with other companies possessing thermal decomposition convergence technology prior to the public announcement of the tender of each of the instant construction works. At least, the Plaintiff was able to participate in the consultation with other companies by combining technology with each of the instant construction works.

(C) On April 209, the Plaintiff participated in the meetings of six companies at the end of April 2009, and the Plaintiff’s meeting was aware that it was a group for each of the instant construction works. In light of the above explanation, C consented to the Plaintiff’s participation in the aforementioned bidding plan, including the Plaintiff’s agreement, by recognizing the Plaintiff as a potential competitor at the time of hearing the explanation. In order to exclude the Plaintiff from the competitors of each of the instant construction works, it was reasonable to view that C, as at the time of considering the above explanation, given the Plaintiff a share as a member of the consortium to exclude the Plaintiff from the competitors of each of the instant construction works, was given to the Plaintiff as a member of the consortium in order to attract the Plaintiff from the competitor of each of the instant construction works, and that it was difficult to participate in the bidding in the Kimpo Construction with the consent of each of the instant construction works, thereby excluding the possibility of other competition in the instant construction works, and thus, the Plaintiff appears to have consented to the bid plan.

(D) As above, the Plaintiff’s consent to participate in the bid for Kimpo-Tech seems to be due to the fact that at the tender for the Namyang Construction Project, the Plaintiff was granted a higher share than the development of the Hanpo-Tech industry as a technical member.

(E) Although there was no specific discussion about the bid price of Kimpo-soon at the 6th group, and thereafter, it appears that the consortium and Russium have exchanged specific intent about the bid price. However, as long as the Plaintiff agreed to participate in the bidding of Kimpo-so in the 6th group, the circumstance that there was no specific discussion about the bid price of Kimpo-soon at the time does not affect the conclusion that there was no specific discussion about the bid price of Kimpo-soon.

2) Judgment on the assertion on the instant order to pay the penalty surcharge

A) Relevant legal principles

In full view of the provisions of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the Fair Trade Act, the defendant has discretion to determine whether to impose a penalty surcharge on a violation of the Fair Trade Act, and if a penalty surcharge is to be imposed, the amount of a penalty surcharge is to be determined in detail within a certain extent provided for in the Enforcement Decree of the Fair Trade Act and the Fair Trade Act. Thus, the defendant's imposition of a penalty surcharge on a violation of the Fair Trade Act is a discretionary act. However, if there are grounds such as misconceptions of the fact that served as the basis for imposing a penalty surcharge in exercising such discretion, or violation of the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2007Du220

B) Whether the calculation of the relevant sales amount is illegal

(1) Determination as to the assertion that the contract value should be excluded from the relevant sales

As seen earlier, the Plaintiff agreed to obtain the share of the consortium in the tender for the Namyang Construction Project, which was scheduled to be a successful bidder, without participating in the above six companies' meetings, and concluded a close relation between the agreement of each of the above construction works of this case. However, according to the above acknowledged facts, each of the construction works of this case can be sufficiently recognized that the Plaintiff participated in the bidding for the Namyang Construction Project as a separate construction project, and that the Plaintiff participated in the bidding for the Namyang Construction Project. Therefore, it is reasonable to include the contract amount for the Namyang Construction in the Plaintiff's relevant sales, and that the contract amount for the Namyang Construction project should be excluded from the Plaintiff's relevant sales on the ground that the Plaintiff obtained the status of the hub in the consortium Construction for the Namyang Construction Project in connection with the bid for the Kim Yangyang Construction Project.

(2) Determination as to the assertion that the relevant sales should be limited to the contract amount for the Namyang Construction

According to the above, each of the instant construction works is identical to the project owner and does not differ at the time of the order, and there is no special relation with each other, and there is no higher overall construction works than each of the instant construction works. Thus, the instant collaborative act cannot be deemed the same as the agreement on construction section division, and as seen earlier, it can be acknowledged that the Plaintiff’s collaborative act is identical to the Plaintiff’s agreement on construction section division. As such, it is reasonable to view that there is no reason to exclude the contract amount for Kimpo Corporation from the Plaintiff’s relevant sales. The Plaintiff’s assertion is without merit.

C) Illegal in calculating the imposition standard rate

According to Section IV.1.1.c. (1)(a) of the penalty surcharge notice, the defendant set the imposition standard rate in consideration of the gravity of the violation with respect to unfair collaborative acts under Article 19(1) of the Fair Trade Act. The defendant set the imposition standard rate in consideration of the gravity of the violation. Although chis construction and chisp construction led the above 6 groups, as long as the plaintiff also attended the meeting and made a bid collusion which generates only the competition-restricting effect, it is difficult to deem that the defendant applied the imposition standard rate of 10% on the very significant violation. In addition, in light of the above, it is difficult to view that the contents of the agreement of the plaintiff in the collaborative act in this case are significant differences with the participants in each bidding in this case. The plaintiff's allegation in this part is without merit

D) Illegality regarding grounds for mitigation due to simple participation

(1) It is difficult to view that the Plaintiff’s participation in the instant collaborative act does not constitute a case where it is evident that the Plaintiff’s participation in the instant collaborative act was irrelevant to the Plaintiff’s interest in light of the following: (a) the developments leading up to the Plaintiff’s participation in the instant collaborative act; (b) the Plaintiff’s participation in the instant collaborative act was considerably large to the extent that it was impossible for the Plaintiff to constitute a consortium and consortium; (c) the overall intent of collusion and the composition of a consortium, and there was considerable room to change the composition of a consortium; and (d) the Plaintiff’s participation in the instant collaborative act was granted by the Namyang Construction Corporation; and (c) the Plaintiff’s participation in the instant collaborative act does not constitute a case where it is evident that

(2) In addition, according to Section IV.3.3(c)(2) of the Penalty Surcharge public notice, where it is evident that a number of enterprisers engaged in simple participation in, or engaged only in an abstract role in, violations may be reduced by up to 30/100, but it shall not apply to the participating enterprisers whose calculation standard has been reduced by at least 30/100 on the ground that the bid collusion fell. However, it is reasonable to deem that the failure to participate in the bidding in light of the provisions of Section IV.1.C.(1)(e) of the Penalty Surcharge public notice in the above provision includes cases where the bidder fails to participate in the bidding in the light of the provisions of Section IV.1.C.(1)(2) of the Penalty Surcharge public notice on the ground that the plaintiff did not participate in the Kimpo Construction project under the provision of Section IV.1.2(e)(2) of the Penalty Surcharge public notice on the ground that it is difficult to recognize the plaintiff's participation in, 30% of the 1.5% discount of the penalty surcharge in the construction project.

(3) The Plaintiff’s assertion on this part is without merit.

E) Determination as to other unlawful grounds for appeal

In light of the above, it is difficult to view that the Defendant’s penalty surcharge imposed on Kimpo Corporation is excessively excessive or that there is a clear difference between the Plaintiff and the Plaintiff’s participation. The collaborative act of this case is a bid collusion for which the successful bidder and the bid price were determined in advance, and it cannot be deemed that the restriction on competition was not limited. In addition, the Defendant applied differential reduction rate due to joint contractors for the development of Hanpo Industries, which led the collaborative act of this case, and the Defendant applied differential reduction rate due to joint contractors for the development of Hanpo Industries. The Plaintiff obtained the benefit of 28% of the share of the joint bidders in the bidding for Yangpo Corporation instead of participating in the bidding for Kimpo Corporation, and the Defendant reduced 20% of the first adjustment standard by the reason that the Plaintiff actively cooperates in the investigation, such as aiding the Plaintiff’s decision on illegality, and added 50% in consideration of the Plaintiff’s actual ability to bear the expenses. In light of the above, the Plaintiff’s above assertion may not be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Judge Yellow-Jil of the presiding judge

Judges Yu Hun-tae

Judges Kim Yong- For

Note tin

1) Although the name of the company was changed to the Coul Global Corporation at the present time, it was a Coul Construction Corporation at the time of bidding for the instant construction project, it is referred to as “Coul Construction.”

2) The indication of the corporation is omitted for stock companies other than the above companies.

3) The term “green center facility” means “a highly advanced waste incineration and food resource recovery plant that recovers and reuses energy generated during the operation of incineration facilities while sanitary and stable treatment of household wastes, food wastes, etc.”

4) The contents of six private groups are as follows:

5) The Plaintiff and ZS Construction constitutes ten construction companies, and thus, the composition of a consortium among two construction companies is prohibited according to the details of the tender announcement of each of the instant construction works.

6) 10% was reduced, 10% was reduced, 10% was reduced, 20% was reduced, 20% was reduced, 20% was reduced, and Korea’s industrial development was reduced.