(영문) 대법원 2015.9.10.선고 2014두11199 판결

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, and determined that the plaintiff committed the collaborative act in this case by entering into an agreement on the share of the total construction cost with other construction companies which are competitors in relation to the four major major major courses after the "large-scale canal construction project," which is a public-private partnership project, was converted into a "large-scale 4 major course project," which is a public-private partnership project. Furthermore, the court below determined that the collaborative act in this case is restricted or likely to be restricted in the relevant market in light

Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

2. As to the Defendant’s grounds of appeal, in light of the purport of establishing the corrective order system under the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), it is reasonable to interpret that the content of the corrective order may also order the prohibition of repeated acts of the same type that might be repeated in the near future (see, e.g., Supreme Court Decision 2008Du23177, Nov. 25, 2010).

According to the reasoning of the lower judgment, the lower court determined that the part prohibiting the Defendant’s corrective order against the Plaintiff, on the ground that the Plaintiff did not participate in the agreement on the construction section, other than the agreement on the “shares,” was unlawful, since it is difficult to view that the Defendant’s corrective order against the Plaintiff constitutes measures necessary for correcting the act of violation.

However, according to the records of this case, the collaborative act in this case is an agreement to allocate the total quantity of construction works of the 4th class project as the equity ratio, and the agreement to allocate construction sections for the 13th class project among the entire construction works of the 4th class project in this case is closely related to both as the agreement to allocate the construction sections to be awarded a successful bid for the 13th class project among the entire construction works of the 4th class project in this case. In addition, considering the characteristics of the construction works ordered by the government or public institutions which have no choice to be awarded through bidding, the "agreement on the construction sections to be awarded a successful bid" as well as the "agreement on the equity ratio of the entire construction works" is a representative means of unfair collaborative acts as stipulated in Article 19 (1) 3 of the Fair Trade Act to restrict the quantity of supply by construction companies.

Examining these circumstances in light of the legal principles as seen earlier, it is reasonable to view that the “agreement on construction tools to be selected as successful bidders” may be repeated in the near future as acts identical to the instant collaborative act recognized by the Plaintiff’s violation of the Fair Trade Act. Thus, it is reasonable to view that the Defendant may issue a corrective order to prohibit the

Nevertheless, the lower court deemed that the Defendant could not issue a corrective order related to the agreement on the construction section, solely on the ground that the Plaintiff did not participate in the “agreement on the construction section for which a successful bidder was awarded. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of the corrective order, thereby adversely affecting

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.