(영문) 서울고등법원 2016.6.30. 선고 2015누35088 판결

1. Of the instant lawsuit, the part regarding the Defendant’s order to pay penalty surcharges in attached Form 1, which was issued against the Plaintiff by Resolution No. 2014-203, Sept. 17, 2014, shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Purport of claim

The Defendant’s corrective order and penalty surcharge payment order listed in attached Form 1 as a resolution No. 2014-203 on September 17, 2014 against the Plaintiff and the disposition to change the amount of penalty surcharge stated in attached Form 2 as a resolution No. 2014-215 on September 26, 2014 shall be revoked.

Reasons

1. Basic facts and circumstances of dispositions;

A. Status of the plaintiff, etc.

Modern Construction Co., Ltd. (hereinafter referred to as "Modern Construction") (hereinafter referred to as "Modern Construction") (hereinafter referred to as "Co., Ltd." in the name of all companies, the "Co., Ltd." is omitted), Daewoo Construction, Samsung C&T Construction, SS construction, ZS Construction, Large Industry Development, Modern Industrial Development (hereinafter referred to as "seven large Construction Co., Ltd."), the plaintiff, candles Construction, C&M global, Hanjin Heavy Industries, C&T construction, Dumsan Construction, T&T construction, F&M, T&M, T&T, Samsung Heavy Industries and Han (hereinafter referred to as "14 construction companies, including the plaintiff and 7 large construction companies"), the plaintiff and 20 companies, including the plaintiff and 20 companies under the former Monopoly Regulation and Fair Trade Act (hereinafter referred to as "the plaintiff and 26 companies under the former 20 companies under the Monopoly Regulation and Fair Trade Act"), and the plaintiff and 120 companies under the former 20 companies under the Monopoly Regulation and Fair Trade Act.

(b) Construction works for high-speed railroads;

1) Summary

Construction works for Honam High-speed Railroad are construction works for construction of high-speed rail networks of 184.534 km in total length which combine the transmission, factory owners, Doksan, Jung-Eup, and the transmission. This is accompanied by large-scale border projects promoted to form a axis of traffic and life as a large-scale network in Korea, which are implemented to form a axis of traffic and life.

The New Construction Works for the Honam High-speed Railroad Construction Works was ordered by dividing it into 19 construction sections. Among them, the 1-1 sections and 3-2 sections among them are design and construction package deal projects; the 1-2 sections, 1-4 sections, 2-3 sections, and 4-2 sections were bided by alternative bid; the remaining 13 sections, including the 2-1 sections, (hereinafter referred to as the "the 13 sections"; hereinafter referred to as the "the bid in this case"), including the 2-1 sections, were the 13 sections, and the 13 sections, including the remaining 2-1 sections, were the 19 sections, and the 3.956.4 billion won in total, as a separate bid for design and construction, were the 19 sections.

2) Procedure for the instant tendering procedure

A) The instant bid calls for the method of selecting a bidder who calls for certain examination standards after examining the adequacy of the bid price from the lowest bidder who tenders at the lowest price as a successful bidder under Article 42(1) and (4) of the Enforcement Decree of the Act on Contracts to Which the State is a Party (hereinafter referred to as the “State Contract Act”). The lowest successful bidder system is subdivided into 30 types of construction, and then the appropriateness of the bid price by type of construction is examined and the successful bidder is determined by examining the appropriateness of the bid price by type of construction. The lowest successful bidder system is excessively limited by the system for examining the appropriateness of the bid price or by eliminating the successful bidder who is inappropriate for a low price bid.

B) The instant bid was conducted by dividing the total 13 sections into five sections (the first bid) and eight sections (the second bid). The method of determining successful bidder was subject to the “1st construction section successful bid scheme that does not permit the successful bid in one or more sections (the second bid).” This was respectively applicable to the first tender and the second tender, and thus, one construction company in the instant tender could be awarded a successful bid in the up to two sections.

C) Specific progress of the instant tender is as follows.

(1) Notice of tender and preliminary examination of bid eligibility ("PPP Q examination")

The five sections of the first bidding were publicly announced on July 31, 2009, and the tender was conducted on August 15, 2009. The eight sections of the second bidding were publicly announced on September 24, 2009, and the second bidding was conducted on October 8, 2009.

P Q Q examination is a procedure for pre-examination as to whether a person is eligible to participate in competitive bidding procedures conducted by an agency awarding a contract as stipulated in Articles 13 and 84-2 of the Enforcement Decree of the State Contracts Act, and after examining the eligibility requirements in the field of management status, it will examine the construction performance field for the persons meeting such requirements. In the instant construction project, the construction company eligible to participate in competitive bidding was limited to not more than 30 construction companies, including 28 Plaintiff et al.

(2) Examining the adequacy of the bid price and determining successful bidders;

The appropriateness evaluation of the tender amount is conducted in the first and second stages, and the first step examination is conducted in an objective examination of tender amount by each type of work, and a person whose number of improper types of work is less than 20% of the total number of work units shall be selected. The improper type of work means the case where the number of improper types of work is lower than 20% than the standard amount by type of work or exceeds 110% of the design amount at the time of announcement. In this case, the standard amount by type of work shall be determined by reflecting 70% of the design amount for the relevant type of work and 30% of the average amount of work type of work. In this case, if a bidder is lower than 50% of the base amount by type of work among the tender amount by type of work

In the second stage examination, from among bidders who have passed the first stage examination, those who are at least 80 points in the evaluation of all improper vacant species shall be determined as successful bidders: Provided, That where there is no type of work determined as improper, or the bid amount of those subject to the second stage examination is at least 80 percent compared to the project price, the successful bidders shall be determined as a successful bidder without an appropriateness examination. In the case of the instant construction works, only 2-2 of the 13 construction sections among the 13 construction sections, all participants of the remaining 12 construction sections did not generate improper vacant species, except for the case of improper vacant types, and all successful bidders of each construction section were determined as a successful bidder without undergoing the second stage examination without undergoing the second stage examination.

D) The result of the bid for each construction section of the instant construction project and the current status of the joint supply and demand organization of the successful bidders are as follows. The Plaintiff has a share of 50% as a successful bidder of the construction section of the 4-3 construction project and a weekly company, and the Plaintiff has a share of 10% as a non-major company (non-major company; hereinafter referred to as hereinafter referred to as 's main company') from among the business entities that constitute a joint supply and demand organization

A person shall be appointed.

C. The construction section division and the agreement of the successful bidder regarding the instant construction project

1) Agreement on the division of sections by seven large constructors

가) 7개 대형건설사의 영업 담당 실무자들은 제1차 입찰공고일 이전인 2009년 6월 내지 7월 무렵 13개 공구의 낙찰예정자를 미리 정하는 논의를 시작하였고, 2009년 7월 중순 무렵 서울역 앞 지에스건설 빌딩 지하에 있는 팰리스 레스토랑 등에서 수차례 모여 공구별 낙찰예정자를 미리 정하기 위한 공구분할의 방법에 대하여 합의를 하였다.

B) Specifically, seven major construction companies divide the following sections into groups A, B, and C, taking into account the number of construction sections, the performance of railroad construction works, the order of appraisal of execution capacity, etc., which are 24 major construction companies eligible to participate in the tender, and divided the following sections, and the prospective bidders for the 13 major construction sections selected by drawing for each group. Accordingly, the content of the agreement on division of construction sections as set forth therein is as follows:

A person shall be appointed.

(ii) the participation in the agreement on the division of sections and the selection of successful bidders;

A) After the construction section division of the instant construction project was completed, 7 large construction companies were asked to notify the Haman and 17 companies affiliated with the Group B and C by wire of their agreement, and whether they will be able to join the said construction project. 14 construction companies, excluding three companies, such as consideration and development, extreme construction, and sco construction, among the 17 companies affiliated with the Group B and C, agreed to participate before the first public announcement date of the tender.

B) Accordingly, 21 companies, including the Plaintiff, etc., selected the successful bidder for the instant construction project by drawing lots for each group, and, with respect to construction companies for which construction sections have not been allocated, the share of joint contractors in the participation of joint contractors or the priority of contracting parties in other construction projects. The agreement on the division of 21 construction sections, including the Plaintiff, etc., determined accordingly, was as follows:

A person shall be appointed.

3) Agreement on the formal participation in tendering between the successful bidder and the bidder for each construction section.

Since then, the registration of PP evaluation was made for the instant construction project. Seven small and medium construction companies that did not participate in the agreement on the division of the instant construction sections and the successful bidder were expected to participate in the bidding. The successful bidder of the instant construction project requested that they make a formal bid in each construction section (hereinafter referred to as the “tender”). Seven small and medium construction companies, under the circumstances where the successful bidder of each construction section was already determined by the lowest successful bidder in the bid price system, were unable to receive a successful bid even if a low-price bid was made solely in the situation where the successful bidder of each construction section had already been determined by the highest bidder of the instant construction project.

(iv) agreement on the bid price of the prospective bidders for each construction section.

7 Large Construction Companies secured appropriate revenues from each construction section, but set the bid price in order to eliminate possible questions such as bid collusions in advance when leaving the bid price to the successful bidder. 7 Large Construction Companies determined the bid price in September 1, 2009 as 76% compared to the design price, and notified the other successful bidders.

5) Implementation of agreements

The bidder and the tendering participant agreed on the bidding price by section 2-1 and 4-4 days prior to the date of the bidding, the successful bidder and the tendering participant agreed on the bidding price by determining the bidding price and notifying the bidding participants of the bidding price by wire, or by storing and directly transmitting it in a computer storage medium ( CD and USB, etc.). They agreed on the bidding price by the successful bidder’s bidding price. The plaintiff participated in the bidding at the second bidding, 2-2, 2-4, 3-3, 3-4, and 5-1 section.

D. The defendant's disposition

1) On September 17, 2014, the Defendant issued a corrective order and a penalty surcharge payment order (hereinafter referred to as the “Corrective order”) on the following grounds: (a) on September 17, 2014, on the ground that 28 companies, including the Plaintiff, etc. agreed to select a successful bidder for each construction section in advance in order to help the successful bidder's successful bid; and (b) other companies, except the successful bidder, agreed to participate in the bid at the price determined by the successful bidder; and (c) the act of implementation thereof (hereinafter referred to as the “instant collaborative act”) constitutes an unfair collaborative act prohibited under Article 19(1)34 and 8 of the Fair Trade Act.

2) Articles 22 and 55-3 of the Fair Trade Act, Article 61(1) and attached Table 2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 22160, May 14, 2010; hereinafter “former Enforcement Decree of the Fair Trade Act”) shall apply to the Defendant’s public announcement of the detailed criteria, etc. for imposition of penalty surcharges (amended by Presidential Decree No. 2010-9, Oct. 20, 2010; hereinafter “public announcement of penalty surcharges”). In light of equity with other cases already managed by the Defendant, the Defendant’s public announcement of the detailed criteria, etc. for imposition of penalty surcharges (amended by Presidential Decree No. 2012-2, Jun. 5, 2013; hereinafter “former public announcement of penalty surcharges”) shall be considered to be unfavorable to the Plaintiff and other companies, and the following specific process of calculation are as follows.

A) Basic penalty surcharges

(1) Relevant sales

The Plaintiff participated in the collaborative act of this case by implementing 13 tools in the instant bidding as agreed on the division of sections, successful bidders, and bid price, and concluding a contract after receiving a successful bid. The relevant sales are deemed the contract price (excluding value-added tax) of the tools in which the Plaintiff participated in the bidding among the 13 sections of the instant construction project.

(2) Standard imposition rate

In light of the content and ripple effect of the collaborative act in this case, the standard rate of imposition of 7% shall apply to the collaborative act in this case on the grounds that the degree of gravity of the act constitutes "seriously serious violation" and thus, the standard rate of imposition of 7.0% to 10.0% shall apply according to subparagraph (a) of subparagraph 1 of Article 4 of the Penalty Surcharge Notice. However, the collaborative act in this case shall apply to 3.5% in accordance with subparagraph 2 of Article 4 of the Penalty Surcharge Notice, considering the overall circumstances that the company that can pass a preliminary evaluation because the qualification requirement is strict, was limited to less than 30 companies, and there were detrimental factors to price competition due to the evaluation of appropriateness of the bid amount. However, if the collaborative act in this case was involved but fails to receive a successful bid, the standard rate of imposition of 3.5% shall apply in accordance with subparagraph 1 (e) of Article 4.1 of the Notice of Penalty Surcharge Notice.

A person shall be appointed.

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

(1) The standards for the calculation of the first adjustment are as follows: (a) there is no ground for the first adjustment due to the period, frequency, etc. of violations.

(2) The Plaintiff consistently recognized the facts of the act from the stage of the examiner’s investigation to the completion of the hearing by the commission, and actively cooperates with the Plaintiff, such as submitting materials or making statements helpful to determine illegality, thereby reducing 20% of the above basic penalty surcharge.

C) Determination of imposition penalty surcharges

Considering the fact that the ratio of the decline amount caused by bidding is larger than the successful bid price among the plaintiff's related sales (the principle of non-performance), 10% of the standard of calculation for the second adjustment shall be reduced, taking into account the plaintiff's ability to pay the actual penalty surcharge, 50% of the standard of calculation shall be additionally reduced, taking into account the fact that the plaintiff's participation in bidding by organizing a joint contractor and participating in bidding, the size of unjust enrichment shall be less than that of the contract alone, 10% of the standard of calculation for the successful bid price shall be additionally reduced, and the construction market is significantly decreasing due to the aggravation of competition, 10% of the above standard of calculation shall be additionally reduced, taking into account the fact that the construction market is significantly decreasing due to the aggravation of competition, and 10 million won shall be imposed.

A person shall be appointed.

3) The Defendant, on the ground that the Plaintiff cooperates in the investigation into the construction of the Kugung Railroad and that it is an investigator for investigation falling under Article 22-2(1)2 of the Fair Trade Act, issued an order to pay a penalty surcharge (hereinafter referred to as the “instant disposition” and hereinafter referred to as the “each of the instant dispositions”) to reduce the penalty surcharge in KRW 9,44,00,000, which was originally determined on September 26, 2014. [The grounds for recognition] The Defendant did not dispute with the instant prior disposition, Gap’s evidence Nos. 1, 4, and Eul’s evidence No. 21, the purport of the entire pleadings, and the purport of the whole pleadings.

2. Whether a lawsuit against the preceding disposition of this case is lawful

A) If the Defendant: (a) carried out an unfair collaborative act and carried out a disposition imposing a penalty surcharge on a voluntary reporter or an investigative partner under Article 22-2 of the Fair Trade Act (hereinafter referred to as “prior disposition”); and (b) again, carried out a disposition reducing or exempting a penalty surcharge on the ground of voluntary report, etc. by separating the case against the voluntary reporter pursuant to Article 35(3) of the Enforcement Decree of the Fair Trade Act; (c) the subsequent disposition is a final disposition that determines the final penalty surcharge that the other party to the disposition should actually pay, including the voluntary report, and it is reasonable to view that the prior disposition is a kind of provisional disposition that plans such a final disposition, and thus, if there is a subsequent disposition, the prior disposition shall be deemed extinguished by absorbing the subsequent disposition. Therefore, in such a case, the lawsuit seeking the revocation of the prior disposition is unlawful as seeking the revocation of the disposition already invalidated (see Supreme Court Decision 2013Du987, Feb. 12,

B) On September 17, 2014, the Defendant issued the instant prior disposition under the Fair Trade Act on the ground of the Plaintiff’s instant collaborative act. On September 26, 2014, the fact that the Plaintiff changed the initial penalty surcharge of KRW 11.86 million to KRW 9.44 million on the ground that he/she was an investigating co-owner is identical as recognized earlier. As such, the instant prior disposition is a final disposition that determines the final penalty surcharge to be actually paid by the Plaintiff, who is the other party to the instant disposition, including the reduction and exemption through investigation cooperation, and is merely a provisional disposition that is planned to be a final disposition, and thus, the instant prior disposition was absorbed and extinguished. Accordingly, the part seeking the revocation of the instant prior disposition among the instant lawsuit, seeking the revocation of the already invalidated disposition, and is unlawful.

3. Whether a lawsuit against the instant disposition is lawful

A. The defendant's main defense

After the filing of the instant lawsuit seeking the revocation of the instant disposition, the Plaintiff submitted an additional claim for the revocation of the instant disposition. Since the amendment of the purport of the instant claim is identical to the filing of a new lawsuit, it should be determined whether the period for filing a lawsuit expires based on the time the application is submitted. Therefore, the part of the instant lawsuit regarding the revocation of the instant disposition should be dismissed in accordance with the period for filing a lawsuit, since it is apparent that the purport of the claim was modified after 30 days from the date the notification of the instant disposition was received.

B. Determination

1) Under Article 262 of the Civil Procedure Act, which applies mutatis mutandis pursuant to Article 8(2) of the Administrative Litigation Act, the Plaintiff in an administrative litigation may modify the purport or cause of the claim to the extent that the basis of the claim is not modified (see Supreme Court Decision 99Du9407, Nov. 26, 199). The effect of complying with the statutory period for a new claim after the amendment pursuant to Article 265 of the Civil Procedure Act takes place, in principle, at the time of modification of the claim (i.e., when the amended claim was submitted to the court). However, as an exception thereto, in cases where a lawsuit seeking cancellation of the preceding disposition was filed, and the purport of seeking cancellation of the subsequent disposition is added to the purport of the claim seeking revocation of the preceding disposition, the period for filing the lawsuit seeking revocation of the subsequent disposition may be determined as at the time when the first lawsuit was filed.

2) In light of the following circumstances acknowledged by the evidence and the purport of the entire pleadings admitted earlier, a lawsuit seeking the cancellation of the instant prior disposition, including the amount of penalty surcharge, was filed within the lawful filing period based on the time of the instant disposition. Since the Plaintiff filed a lawsuit seeking the cancellation of the instant prior disposition, and subsequently amended the purport of the claim seeking the cancellation of the instant disposition, the part seeking the cancellation of the instant disposition during the instant lawsuit ought to be deemed to have complied with the filing period.

A) According to Articles 21 and 22 of the Fair Trade Act, when there is an act of violating the prohibition provisions on unfair collaborative acts, the defendant may order the enterpriser concerned to take corrective measures or impose a penalty surcharge on the enterpriser concerned. According to Article 22-2(1) of the Fair Trade Act and Article 35(1) and (3) of the Enforcement Decree of the Fair Trade Act, where a person who reported or cooperated in an investigation before the commencement of the investigation by the defendant with respect to the unfair collaborative act satisfies certain requirements, the penalty surcharge and corrective measures may be mitigated or exempted, and the defendant may separately deliberate or separately decide on the case in question so that the identity of the person who has filed a voluntary report or cooperated in an investigation is not disclosed at the request of the person who has filed a voluntary report or cooperated in an investigation. Comprehensively taking into account these provisions, the defendant's disposition of reduction or exemption of the penalty surcharge by the voluntary report is ultimately one procedure for determining the final enterpriser's penalty surcharge. However, the defendant can only decide separately the identity of the person who has filed a voluntary report.

B) Since the preceding disposition is absorption of a kind of provisional disposition scheduled for the instant disposition, the illegality of the preceding disposition exists in the instant disposition, and thus, disputing the illegality of the preceding disposition does not differ from disputing the illegality of the instant disposition, which was absorbed.

C) The preceding disposition and the instant disposition are composed of a series of procedures, and are closely related to each other. The amount of penalty surcharges established in the instant disposition, which the Plaintiff sought revocation while filing a lawsuit, includes the amount of penalty surcharges established in the instant disposition, and the instant disposition is not a new disposition in relation to the prior disposition, and thus, is not a new disposition, and thus, the purport of the instant prior disposition’s revocation claim is included in the purport of objection to the instant disposition. Therefore, in a case where a lawsuit seeking revocation of the instant prior disposition was filed first, and there was a modification of the purport of the claim seeking revocation of the instant disposition, it is reasonable to determine whether the period for filing a lawsuit against the instant disposition complies with the purport of the revocation

3) Therefore, the part seeking the revocation of the instant disposition among the instant lawsuits is lawful by complying with the filing period, and thus, the Defendant’s defense against this issue cannot be accepted.

4. Whether the corrective order of this case and the disposition of this case are legitimate

A. The plaintiff's assertion

1) Non-existence of competition restriction

The instant construction project had limited the number of construction companies that were allowed to participate from the beginning, and there was no restriction on competition since it was limited from the beginning due to the first section bid bid system, the lowest bid price system, etc. Nevertheless, the Defendant concluded that the restriction on competition of the instant collaborative act is recognized, thereby rendering the instant disposition without any specific explanation, and thus, the instant disposition was unlawful.

(ii) the deviation and abuse of discretionary power;

A) A deviation from and abuse of discretionary power under the application of penalty surcharges notice;

In rendering the instant disposition, the Defendant calculated penalty surcharges by applying the detailed evaluation criteria table of the notice of penalty surcharges in favor of the Plaintiff, and, in accordance with the detailed evaluation criteria table of the notice of penalty surcharges (amended by the Fair Trade Commission Notice No. 2014-18, Dec. 31, 2014; hereinafter referred to as the “the notice of revised penalty surcharges”), the instant collaborative act constitutes a "serious violation", and the reduction rate of 30% should be applied to mitigation following investigation cooperation. This constitutes a case where the law was revised favorable to the Plaintiff. This case’s other cases similar to the Plaintiff are subject to the notice of revised penalty surcharges, and thus, the notice of revised penalty surcharges should also be applied to the Plaintiff under the principle of equality and the principle of self-defense. Nevertheless, the Defendant calculated penalty surcharges against the Plaintiff by arbitrary notice of penalty surcharges, which is unlawful as it deviates from and abused the Defendant’s discretionary power.

B) Defect in calculating the relevant sales amount

The Defendant: (1) The instant collaborative act was a case in which seven major construction companies led to divide the construction sections; (2) after the division of the construction sections, the enterpriser’s participation in the bidding constituted ex post facto act to implement the agreement on the division of construction sections, and was included in the relevant sales by deeming it as a separate violation of the law; and (2) without considering the fact that the scale of substantial unjust enrichment or the number of construction sections that could have been awarded among the 13 construction sections of the instant construction works is only a maximum of 2 construction sections, the Plaintiff calculated the total construction price of all seven construction sections participating in the bidding as the relevant sales.

Therefore, the defendant's calculation of the penalty surcharge against the plaintiff without considering the contents and degree of the collaborative act in this case and the size of unfair profit acquired by the plaintiff violates the principle of proportionality.

C) Defect in the determination of the base rate;

This case’s construction project is subject to restrictions on competition from the beginning due to the bid price system of one section, the lowest bid price system, etc., and thus, it is relatively weak to the extent that the order of competition due to the instant collaborative act is undermined. Nevertheless, the Defendant determined that the degree of the gravity of the instant collaborative act is “a serious violation” and thus, the determination of the imposition standard rate is unlawful as it goes against the principle of proportionality or the principle

D) Defect in the determination of a penalty surcharge

The Defendant did not impose a penalty surcharge on the section which was awarded by the Defendant by participating in SBB and participated in the bid as a main contractor, and imposed a penalty surcharge only on the section which was awarded by the Defendant. While the adjusted penalty surcharge was reduced by 10% on the part which was awarded by the Plaintiff, etc., on the part of the 28 construction companies including the Plaintiff, etc., on the part of the 28 construction companies which did not have awarded the successful bid, 30% of the cover portion of the construction companies which did not have the bid section among the 28 construction companies including the Plaintiff, etc. In the end, the Defendant’s decision to impose the penalty

B. Relevant statutes

Attached Table 3 shall be as stated in the relevant statutes.

C. Determination

1) Whether competition restriction exists

A) Whether a collaborative act restricts competition as provided by Article 19(1) of the Fair Trade Act should be determined individually by examining whether the collaborative act causes or is likely to cause impacts on the determination of price, quantity, quality, and other terms and conditions of trading by reducing competition in a particular business area by taking into account various circumstances, such as the characteristics of the relevant product, consumers’ standard for choosing products, and the impact of the relevant act on the market and enterprisers on the competition. In particular, an act of jointly determining or changing price by enterprisers causes impacts on the determination of price, quantity, quality, and other terms and conditions of trading to a certain extent according to their intent by reducing the price competition within the scope thereof, and thus, such collaborative act by enterprisers is deemed unfair, barring any special circumstance (see Supreme Court Decision 2008Du21058, Mar. 26, 2009).

B) The instant collaborative act constitutes a typical bidding collusion as an act of dividing a construction section and jointly determining the successful bidder and the bid bidder by each construction section in advance, and such bidding collusion is deemed to be the most unlawful among the speculative bidding. Even if certain degree of competition was restricted in the first bidding, in fact, 28 joint bidders, including the Plaintiff, etc., divided the construction section and participated formally in the instant bidding, such as the bid bid bid, and the bid bidder’s participation in the instant bidding. The bid bidder followed the last bidding by maintaining whether the bid bidder will participate in the price agreed upon in advance. As a result, in the instant bidding, the price competition was completely terminated, and the bid system was circumvented.

C) In particular, in the case of a successful bid, such as the instant bid, the lowest price for each type of work, which serves as the basis for determining improper types of work depending on the bid price for each type of work presented by the bidder, is different, and the bid price for each type of work submitted by the bidder serves as an important evaluation factor in the selection of a successful bidder. In addition, since the evaluation committee members commissioned by the ordering agency during the second stage of the evaluation of the adequacy of the tender price would undergo the regular evaluation process, it is impossible to guarantee the execution of the agreement among the project operators. In this case, in the second stage of the instant case, fair competition could not be achieved even in the second stage examination by agreement to the extent of 76% of the design price so that the bid price for each type

D) Furthermore, the instant collaborative act cannot be seen as having any other intent except for the purpose of creating stable profits by restricting competition among the participants in bidding for the instant 13 construction sections by the 28 companies, including the Plaintiff, etc., on the other hand, the evidence submitted alone alone is insufficient to recognize that the instant collaborative act was promoted, or that the overall efficiency of the economy was promoted.

E) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Whether the application of penalty surcharge notice deviates from or abused discretionary power

The illegality of an administrative disposition in an administrative litigation shall be determined on the basis of the relevant statutes and factual state at the time when the administrative disposition was taken, and it shall not be affected by the amendment or repeal of statutes or changes in the actual state after the disposition (see Supreme Court Decision 2007Du1811, May 11, 2007). In a case where the issue is whether the new and old laws should be applied due to the amendment of statutes after the disposition, the laws and regulations at the time of the administrative disposition should be applied in accordance with the above legal principles, and the same applies to the public notice of penalty surcharges, which presents discretionary rules in calculating the

Considering that the foregoing legal doctrine and the notice of revised penalty surcharge, which was in force at the time of the enforcement of the instant disposition, provide that “where penalty surcharges are imposed on the offenses that were terminated before the enforcement date of the public notice, it shall be governed by the provisions at the time of the violation” in paragraph (2) of the Addenda thereto, the expiry date of the instant collaborative act constitutes a violation that ends before November 11, 201, which is the enforcement date of the public notice of revised penalty surcharge, and thus, constitutes a violation that ends before May 30, 2014, which is the enforcement date of the public notice of revised penalty surcharge, the Defendant shall calculate the imposition standard rate by evaluating the gravity of the

In addition, the application of the notice of penalty surcharge by itself does not conform to the Constitution or laws, or the result of the application of the standard is considerably unreasonable in light of the Plaintiff’s violation and the scope of the amount provided for in Article 22 of the Fair Trade Act, etc. Furthermore, even if the Defendant applied the revised notice of penalty surcharge in other bidding collusion, it is difficult to deem that the Plaintiff was trusted by an administrative act under detention. Therefore, it is difficult to deem that the Defendant’s calculation of penalty surcharge by applying the notice of penalty surcharge to the Plaintiff when issuing the instant order to pay the penalty surcharge does not find any circumstance to deem that the Defendant violated the principle of equality or the principle of trust.

(iii) the existence of any defect in calculating the relevant sales amount

A) The nature of the agreement on bidding

(1) According to the facts found earlier, the instant collaborative act was conducted in the order of ① the agreement on the division of sections of seven large construction companies, ② the participation in the division of sections of 14 construction companies, ③ the selection of the successful bidder of 21 construction companies including the Plaintiff, ③ the Plaintiff, etc., and the agreement on the bidding price and the bidding price. Each of these stages was conducted without a single intent and purpose to pursue the interest of each enterpriser by avoiding mutual price competition in the same market as the bidding market of the instant construction project. The number of the members participating in the agreement gradually increased whenever each agreement is reached, and the limitation of competition among the members is more concrete. Accordingly, the instant collaborative act does not constitute a simple agreement on the division of sections and the bidding price agreement on the construction project.

(2) Although the Plaintiff did not participate in the first seven major construction companies’ agreement on the division of sections, prior to the date of the first public announcement of the tender, the Plaintiff accepted such agreement and agreed on the bid price with seven major construction companies who did not participate in the agreement after being selected as the successful bidder, and agreed on the bid price, and participated in the bidding in another seven construction sections. The Plaintiff’s act, as a typical bidding, became extinct by the competition itself in the bid of the relevant construction section, thereby fundamentally impairing the purpose of the competition.

(3) Therefore, the Plaintiff’s act constitutes a violation of the Fair Trade Act, and the Defendant may calculate the relevant sales by taking into account not only the tools awarded by the Plaintiff but also the tools participating in the bidding. Therefore, this part of the Plaintiff’s assertion is without merit.

(B)Calculation of the relevant sales of the tools for bidding bid;

(1) Articles 22 and 55-3(1) and (5) of the Fair Trade Act stipulate that a penalty surcharge may be imposed up to 2 billion won may be imposed on an enterpriser who has committed an unfair collaborative act by 10/100 of the sales determined by the Presidential Decree in order to deprive the enterpriser of illegal economic benefits acquired by the unfair collaborative act and to realize the administrative purpose of preventing the unfair collaborative act. Meanwhile, in imposing the penalty surcharge, the standard for imposition can be prescribed by the Enforcement Decree in consideration of the content and degree of the violation, the period and frequency of the violation, and the scale of gains acquired by the violation. Accordingly, Article 9(1) of the Enforcement Decree of the Fair Trade Act provides that "the sales amount determined by the Presidential Decree means the sales amount of goods or services sold in a particular business area during the period of violation or the amount equivalent thereto: Provided, That where the violation is a bidding collusion and a similar act, it refers to the contract amount if the enterpriser has not participated in the bidding price, but the contract amount related to the bidding price is not determined by the bidding price.

(2) Even if the contract amount is considered as related sales, it is difficult to view that such measures are unlawful immediately on the ground that there is no difference between the successful bidder and the bidder based on the scale of benefits acquired at the stage of calculating the relevant sales, considering the amount of benefits acquired in accordance with Article 55-3(1)3 of the Fair Trade Act up to the determination of the final penalty surcharge.

(3) Therefore, the Defendant’s calculation of the pertinent sales by combining not only the tools awarded by the Plaintiff but also seven sections of the bid with the Plaintiff’s bid price is lawful and cannot be deemed to be in violation of the principle of proportionality or the principle of excessive prohibition.

C) the existence of defects in the determination of the base rate

The degree of gravity of a violation caused by an unfair collaborative act shall be determined by comprehensively taking into account the degree of undermining competition order caused by the violation, the influence and ripple effect on the market, the degree of damage to the relevant consumers and enterprisers, and whether to acquire unjust enrichment (see Supreme Court Decision 2009Du15005, Sept. 8, 201).

The instant corporation is a large-scale national project that has a significant impact on the national finance. The instant collaborative act is so-called light collaborative act that 28 companies, including the Plaintiff, etc., participated in the instant collaborative act by dividing the construction section and setting the bid price in advance with the bid bidder, and all of the bid bidders, etc. participating in the instant collaborative act are highly effective in restricting competition. The instant collaborative act is not only successful bidding but also the average bid price rate is 78.5% higher than the average bid price rate of the entire public sector in 2009, the minimum bid price rate is 73% higher than the average bid price rate of the construction project in 209. Thus, it is difficult to view that the Defendant applied the first section successful bid price system in the instant construction project, the number of enterprises limited to the number of participating in the prior review due to strict requirements for qualification for participation, and there were factors impeding price competition due to the determination of appropriateness of bid price, and thus, it is difficult to see that the Plaintiff’s imposition rate of penalty surcharge was set by 15% lower than 70% of the Plaintiff’s.

D) Whether the decision on imposing a penalty surcharge is lawful

In light of the following circumstances, the Defendant’s decision on the imposition of penalty surcharge cannot be deemed as going against the principle of proportionality or the principle of equality. Therefore, the Plaintiff’s assertion on this part is without merit.

(1) As seen earlier, in Section IV (e) of the Notice of Penalty Surcharge Notice, where a contract is concluded as a successful bid, a successful bid is awarded, where a contract has not been concluded, where a bid is not submitted, or where a bid is rejected, and where a contract is withdrawn, the criteria for imposition of each penalty surcharge are prescribed. Accordingly, the Defendant imposes a penalty surcharge on the sections in which the Plaintiff participated in the bid with the bid price of the Plaintiff among the 13 construction sections of the instant construction project. The foregoing provision is intended to discriminate the imposition of a penalty surcharge in accordance with the degree of illegality, and it is not clearly against the definition or unreasonable.

(2) In the case where a successful bid exists and where there is a construction section, the illegality of the act is not the same, and the degree thereof is not determined based on the share ratio. Thus, it cannot be said that the balance between the amount of unjust enrichment acquired by the Plaintiff based on the comparison of the contract price calculated according to the share ratio within the joint supply and demand organization with other construction companies cannot be said to be in violation of equity. Therefore, it cannot be said that the reduction rate between the Plaintiff’s reduction rate of the construction section where the successful bid is successful bid and the construction company where there is no successful bid section has been a substantial unfair result.

5. Conclusion

Therefore, the part of the claim for cancellation of the prior disposition among the lawsuit of this case is unlawful and dismissed, and the plaintiff's claim seeking cancellation of the corrective order of this case and the disposition of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

Judges Yoon Sung-won

Judges Yu Hun-tae

Judges Kim Yong- For

Note tin

1) In light of the order of construction, relevance between types of construction, construction cost, etc., the number of types of construction work is different depending on the characteristics of construction work (e.g., ground destruction, soil treatment, steel processing assembly, etc.), but most of the minimum successful construction work is usually divided into 30 types of construction work for a single construction work.

2) The Korea Rail Network Authority shall encourage the participation of 10% of the consortiums by regional enterprises in the construction work for the lowest bid system for the south-west high-speed rail.

3) 5-1 Section 5 is a section leading to the Donnam-do, and the gold industry, the location of which is the Donnam-do's business, is a consortium with the capacity of the local company as the representative.

4) The Defendant applied Article 19(1)3 of the Fair Trade Act only to 21 companies, including the Plaintiff, etc. who participated in the construction section division and the agreement of the successful bidder.