(영문) 대법원 2017.10.12.선고 2014두35355 판결

Based on its stated reasoning, the lower court determined that the act of the Plaintiff, Hyundai Construction Co., Ltd., gold industry, gold industry Co., Ltd. (hereinafter referred to as the above four companies, including the Plaintiff, etc.) formed a joint supply and demand organization respectively, and the act of the Plaintiff’s participation in the instant tender as its representative and the bid price to be reflected in the bid price calculated by the agreement (hereinafter referred to as the “agreement”) is an act of unfairly restricting competition under Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the “Fair Trade Act”).

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules,

2. Regarding ground of appeal No. 2

A. Articles 22 and 55-3(1) and (5) of the Monopoly Regulation and Fair Trade Act provide that a penalty surcharge may be imposed on an enterpriser who has engaged in unfair collaborative acts within the extent not exceeding ten percent of the sales determined by the Presidential Decree (2 billion won in the absence of sales). Article 9(1) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Enforcement Decree of the Fair Trade Act") provides that the standard for imposing a penalty surcharge may be determined by the Enforcement Decree in consideration of the substance and degree of the violation, duration and frequency of the violation, and the size of profits acquired from the violation. Upon delegation, Article 22(1) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Enforcement Decree of the Fair Trade Act") provides that "the standard for imposing a penalty surcharge shall be determined by multiplying the sales amount of goods or services sold in a particular business area during the period of violation or by the amount equivalent thereto (hereinafter referred to as "related sales amount"), and the standard for imposing a penalty surcharge within the scope not related to the unfair collaborative act.

As can be seen, while the Fair Trade Act sets the limit of penalty surcharges and the amount of sales under Article 22 of the Fair Trade Act, which is the basis of the calculation thereof, as ‘related sales', the sales of related goods or services or the amount corresponding thereto, is based on ‘contract amount'. However, considering the overall structure, contents, purport, purpose, and history of the relevant Acts and subordinate statutes as above, considering the characteristics of the tender consultation agreement, it is only recognized as ‘related sales' in the special form of ‘related sales', and it cannot be said that the ‘contract amount' is a purpose that is entirely separate concept that is irrelevant to the intrinsic nature of ‘sales' under the Fair Trade Act or ‘related sales'. Thus, even in the tender consultation agreement, if some of the contract amount concluded cannot be deemed as the sales amount, it should be deducted from ‘contract amount, which is the basis for calculation of penalty surcharges.'

B. (1) Based on its adopted evidence, the lower court acknowledged the following facts: (a) the public procurement agency publicly announced the instant bidding amount of KRW 92,265,00,000 as estimated on December 14, 2010; (b) the instant public tender notice and subsequent construction site explanation, etc. were subject to direct purchase of construction materials under Article 12 of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Support for Development of Market Markets (hereinafter referred to as the “Act on the Promotion of Purchase”), and there was a statement in the purport that some items are directly purchased and supplied after the conclusion of the construction contract, and deducted the amount corresponding thereto from the contract amount; (c) the opening of the instant public procurement agency was selected as qualified for the design on April 25, 201; and (d) the Plaintiff public procurement agency concluded the contract amount with the Public Procurement Service on July 4, 2011, including the bid amount of KRW 87,135,06,000,369.

(2) Furthermore, along with such recognized facts, the lower court determined that: (a) under Article 22 of the Fair Trade Act and Article 9(1) of the Enforcement Decree of the same Act, the relevant sales for calculating the penalty surcharge are stipulated as "contract amount"; (b) the Plaintiff et al. did not impose restrictions on the actual sales; (c) the total construction cost, including the government-funded material cost, was affected by the instant agreement, since the Plaintiff et al. agreed upon and implemented each bid rate based on the estimated construction cost, including the cost of the government-funded material cost; and (c) the materials directly purchased and supplied by the contracting authority are essential for the completion of the instant construction; and (d) it is reasonable to regard the government-funded material cost as part of the cost inevitably required for the instant construction project; and (d) the relevant sales amount merely serves as the basis for calculating the penalty surcharge; and (e) the amount of final penalty surcharge should be limited to the amount of the construction cost, the period, and frequency of the construction cost, and the amount of profits acquired therefrom, based on the relevant circumstances that the Defendant actually did not have any other profits.

C. However, we cannot accept the judgment of the court below for the following reasons.

(1) The reasoning of the lower judgment and the record reveal the following facts.

① In the instant bidding notice, etc., the Corporation is confirmed to be eligible for direct purchase of construction materials pursuant to Article 12 of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and the Development of Market Support, and items eligible for direct purchase.

There was a statement that the fixed material is purchased and supplied directly by the ordering office, and that corresponding amount is deducted from the contract price, and that the bidder must be aware of this fact and participate in the bidding, and that the responsibility for the failure to know is against the bidder.

(2) Where a public institution places an order for construction works, the estimated price of which is at least 2 billion won, is at least 30,000 won, it shall reflect the items in the design as government-funded materials of the relevant construction work and directly purchase them (Article 12(2) and (3) of the Sales Promotion Act, Article 11(1) and (3)1 of the Enforcement Decree of the Act on the Promotion of Purchase of Small and Medium Enterprise Products and Support for Development of Agricultural and Fishing Villages).

Therefore, since a separate contract is entered into with respect to government-funded materials that are ordinarily reflected in the design, the government-funded materials amount will not be included in the contract amount for construction works.The government-funded materials amount will not be included in the contract amount for construction works.

However, as the bid in this case is conducted in the method of a package deal with design and construction, the bidder prepared a design drawing at the time of the bid, and the site description of the bid in this case stipulates that the business operator selected as the person eligible for the design shall prepare and submit a product report subject to direct purchase at the stage of the shop design. As such, the ordering agency did not specify construction materials subject to direct purchase at the stage of "tender public notice" or "Selection as the person eligible for the shop design" or "Selection as the person eligible for the shop design."

④ Accordingly, the Plaintiff Joint Supply and Demand Company and the Public Procurement Service concluded a contract including the amount of the government-funded materials in the contract amount of the instant case, and subsequently, concluded a contract by reducing the amount of the government-funded materials. The Plaintiff Joint Supply and Demand Company concluded a contract to exclude the government-funded materials from the amount of the government-funded materials on October 24, 2012.

⑤ It is difficult to find out the circumstances to deem that the Plaintiff joint contractors, who are the successful bidders in the instant bid, treated the amount of government-funded materials as sales in the accounts, or actually acquired the ownership of such materials.

(2) Examining these facts in light of the legal principles as seen earlier, the following is determined.

(1) Of the contract amounts entered into in accordance with a package deal design and construction project, the part corresponding to the amount of the government-funded materials out of the contract amounts of this case shall be limited to the provisional nature, which is naturally premised on that the amount of the government-funded materials should be deducted from the time of bidding, and it shall not be deemed a conclusive contract amount.

② In light of the fact that the instant bidding notice, etc. provides that bidders are fully aware of the direct purchase of construction materials by the regulations on market support, etc., it seems that four companies including the Plaintiff, etc. were clearly aware that the amount of the government-funded materials will be deducted from the contract amount. Thus, even the amount of the government-funded materials, it is difficult to regard the part of the government-funded materials as the “contract amount,” which has the nature of a consideration for the service provided with respect to the instant construction work, as the “contractual amount,” and therefore, it is difficult to evaluate that this part was subject to the instant agreement from

③ In principle, sales are determined by referring to a business operator’s accounting data (attached Table 2). In light of the circumstances described in Article 61(1) [Attachment Table 2] of the Enforcement Decree of the Fair Trade Act and Article 61(1) [Attachment 2] (A) of the Enforcement Decree of the Fair Trade Act, it cannot be deemed that the government-funded material amount was recognized as “the

④ Therefore, even if considering the specificity of the bidding consultation agreement, the amount of the government-funded material cannot be deemed as falling under the sales amount under the instant construction contract. Therefore, the government-funded material amount does not fall under the “contract amount, which is the basic basis for calculation of penalty surcharges under Article 9(1) of the Enforcement Decree of the Fair Trade Act, and thus, it should be deducted from the calculation of the “contract amount, which is the basic basis for calculation of penalty surcharges

D. Nevertheless, the lower court determined that the Defendant’s measure, which uses the contract amount including the amount of government-funded materials as the standard for calculating penalty surcharges against the Plaintiff, was lawful. In so doing, the lower court erred by misapprehending the legal doctrine on the standard for calculating penalty surcharges in bidding collusion and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.