[1] Whether an agreement on unfair collaborative act can be deemed to have been reached only by exchanging information on price between the business operators (negative), and where it can be deemed that an implied agreement was reached on the act of exchanging information on price exceptionally

[2] In a case where Company A, which is engaged in manufacturing and selling business, agreed with other enterprisers to increase the price first, and then decided at the same or a similar level at a similar time, such as price increase in order, the case holding that Company A, etc.’s series of agreements constitutes one unfair collaborative act as a whole, in a case where the Fair Trade Commission issued a corrective order and penalty surcharge payment order to Company A

[1] In light of the contents, form, and purport, etc. of the relevant provisions under Article 19(1) and (5) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), information exchange among enterprisers is not separately stipulated in the type of prohibition under Article 19(1) of the Fair Trade Act. It cannot be deemed that there was an agreement on unfair collaborative acts by exchanging information on prices between enterprisers because it constitutes one of the legal grounds for presumption under Article 19(5) of the Fair Trade Act. Furthermore, even if an enterpriser exchanged information on prices and sets a price on the basis of the exchange, it cannot be readily concluded that there was an agreement on unfair collaborative acts as a matter of course. It is difficult to deem that the so-called “Dong or cooperative act” regulating the price as a kind of collaborative act in a foreign country as well as on the basis of the Fair Trade Act, and thus, it cannot be determined that there was an agreement on unfair collaborative acts by mediating such information. However, if there is an additional agreement on the nature and content of information, method of information exchange and the subject and method of information exchange.

[2] In a case where Gap corporation, which is engaged in the business of manufacturing and selling Eul, agreed with other enterprisers to raise the price first, and then decided the price of Eul company to the same or a similar level at a similar time, such as successively raising the price, the case holding that if Gap company and other enterprisers are different from Eul company, there was an express agreement between them to determine the ex-factory price of the product at the same or a similar level, and in light of various circumstances, Gap company and other enterprisers continued to exchange core information about the price such as the price increase plan, and subsequent price increase was made in order by the same method, the ex-factory price of Gap company et al. coincide with the original unit, and it can be deemed that there was an implied agreement to determine the ex-factory price at the same or a similar level, and thus, the subsequent increase constitutes a series of unfair collaborative acts established in six times as a whole.

[1] Article 19(1) and (5) of the Monopoly Regulation and Fair Trade Act / [2] Articles 19(1)1, 21, and 22 of the Monopoly Regulation and Fair Trade Act

Seoul High Court Decision 201Na11448 delivered on August 1, 201

Fair Trade Commission (Law Firm Gyeongsung, Attorneys Kim Gi-hwan et al., Counsel for the defendant-appellant)

August 30, 2013

1. All of the plaintiff's claims are dismissed.

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

The Defendant’s corrective order and penalty surcharge payment order stated in the attached Form No. 2012-107, which was issued by the Plaintiff on July 12, 2012, shall be revoked.

1. Details of the disposition;

A. The plaintiff's status

The Plaintiff and Samyang Food Co., Ltd., Obaco, Korea Yoot Co., Ltd. (hereinafter “Mayang”), Macoo Co., Ltd. (hereinafter “Macong”), “Macoo”, and “Macoo” when combined with the Plaintiff, three companies, and three companies, if combined with the Plaintiff, the Plaintiff, etc., constitutes a business entity under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), who is engaged in the business of manufacturing and selling the Plaintiff, etc. (hereinafter “Plaintiff, etc.”).

B. The defendant's disposition

The Defendant: (a) issued a resolution on July 12, 2012, No. 2012-107; and (b) “the Plaintiff, at a representative meeting held at the end of December 2000 or on January 1, 2001, with three company if the Plaintiff first agreed to increase the price, other companies would also participate in the meeting to raise the price; and (c) subsequently, on six occasions from May 2001 to July 201, 201, if the Plaintiff first prepared the price set and notified other companies of the information such as the details and timing of the price set, then increased the price set at the same or similar line; (d) if the Plaintiff confirmed the progress of the price set at the price set at the end of the first meeting held at the meeting held at the first meeting held on July 12, 201, and then agreed to jointly enter the price set at the same or similar price set at the same time as the Plaintiff’s order of correction (hereinafter referred to as “the foregoing Fair Trade Act”).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence No. 1, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The statements made by the executives and employees who are voluntary reporters are not reliable, and there is no objective evidence to prove otherwise that there was an agreement on price reduction, and there is no agreement on unfair collaborative acts.

2) In light of all circumstances, (1) the instant order to pay penalty surcharge is unlawful by abusing or abusing discretion, in light of the following: (a) the product not recognized as identical to the external shape of the price and the product not included in the concept of ○○ Mabdong, etc. included in the relevant product; and (b) the relevant sales were calculated even for the period during which it is difficult to deem that there was an agreement on the collaborative act; and (c) the Plaintiff did not take unjust enrichment due to the instant collaborative act; and (d) the imposition of excessive penalty surcharge even if the need for sanctions

B. Determination

1) Whether an unfair collaborative act is established

Article 19(1) of the Fair Trade Act provides that "an enterpriser shall not, by contract, agreement, resolution, or any other means, agree with any other enterpriser to jointly engage in any of the following acts that unfairly restrict competition, or allow any other enterpriser to engage in such act." Here, "agreement on unfair collaborative acts" may be determined to exist in a case where the existence of an agreement is recognized as complying with the intent of an unfair collaborative act between two or more enterprisers. There is no special restriction on the method or form of "interconnection of intent" and may be made by implied agreement as well as explicit agreement. In addition, Article 19(5) of the Fair Trade Act provides that "in cases where two or more enterprisers perform an act falling under any of the subparagraphs of paragraph (1) and it is highly probable that the enterprisers jointly engage in such act in light of the characteristics of the transaction area or goods, goods or services, economic reasons and ripple effects of the act, and the frequency and mode of contact between enterprisers, etc., it shall be presumed that the enterprisers jointly agreed on any of the acts falling under the subparagraphs of paragraph (1)."

In light of the contents, form, purport, etc. of the aforementioned relevant provisions, information exchange among enterprisers does not separately provide for the type of prohibition under Article 19(1) of the Fair Trade Act, and it cannot be deemed that there was an agreement on unfair collaborative acts by exchanging information on the price between enterprisers, which is one of the legal grounds for presumption under Article 19(5) of the Fair Trade Act. Furthermore, even if an enterpriser exchanged information on the price and exchanged each other’s price based thereon, it cannot be readily concluded that there was an agreement on unfair collaborative acts as a matter of course solely on such circumstances. The so-called so-called “Dong or cooperative act” regulating a collaborative act in a foreign country as a type of one of the collaborative acts is not clear, and it cannot be deemed that there was an agreement on unfair collaborative acts, unless there is a separate legislation. However, it may not be determined that there was an agreement on unfair collaborative acts by mediating it, unless there was a separate legislation. In full view of the importance of information, such as the nature and content of information, timing, subject and method of information exchange, etc., and where the information was reflected or agreed on the existing prior agreement.

In light of the above legal principles, in full view of the statements in the evidence Nos. 1 through 14, the testimony of Non-Party 1 and 2 as well as the overall purport of the pleadings, it can be acknowledged that there was an explicit agreement between the Plaintiff and the non-party 3 to determine the ex-factory price of the product, if the Plaintiff and the non-party 1 were to determine the ex-factory price of the product at the same or a similar level as indicated below.

(2) As to the increase of 2 through 6, subparagraph 1 of Article 2, subparagraph 2, subparagraph 1, subparagraph 2, subparagraph 3, subparagraph 2, subparagraph 1, subparagraph 3, subparagraph 52, subparagraph 56, subparagraph 57, 59, 60, 62 through 64, 68, 70 through 73, 77, 84, 87, 89 through 91, 97, 98 through 100, 102, 105 through 109, 1113 through 116, 123 through 130, 136, 140 through 142, 149, 150, 151, 1561, 157, 167, 166, 166, 203, and 36, the price increase based on the overall statement and purport of the Plaintiff's testimony were identical to the above price increase.

A) Holding meetings of representatives, etc.

On the end of December 200 or on January 21, 2001, the Plaintiff et al. exchanged opinions on the necessity of price increase through a representative meeting held at Rottenice Seoul, Gangnam-gu, Seoul, and then consulted with other companies to comply with the first increase of the price. In addition, on March 28, 2001, the participants held at an ordinary meeting of the Council for the Council for the Council on the Normalization of Trade," which was held at the Gadow Hotel hotel located in Yongsan-gu, Yongsan-gu, Seoul, discussed the progress of the consultation with the Government before the beginning of the general meeting, and discussed the rate of price increase. Accordingly, on May 21, 2001, the Plaintiff increased the average of the ex-factory price of 17, 17, and 17, on the container by 9.9%, and thereafter, on June 1, 2001, the total price increase by the Plaintiff et al. from 201 to 201.

In the case of the plaintiff et al., attached Table 1>

본문내 포함된 표 순번 가격인상 시기 농심(△라면) 삼양(□□라면) 오뚜기(▽라면) 야쿠르트(◇라면) 1 2001년 5월 가격인상일 2001. 5. 21. 2001. 6. 1. 2001. 7. 1. 2001. 6. 1. ∼ 평균 인상률 9.9% 12.0% 10.5% 9.7% 2001년 7월 주력품목 출고가 322 322 322 322 2 2002년 10월 가격인상일 2002. 10. 25. 2002. 11. 1. 2003. 1. 2. 2002. 12. 1. ∼ 평균 인상률 8.5% 9.5% 9.1% 8.6% 2003년 1월 주력품목 출고가 349 349 349 349 3 2003년 12월 가격인상일 2003. 12. 22. 2004. 2. 21. 2004. 4. 1. 2004. 2. 1. ∼ 평균 인상률 7.7% 7.8% 6.9% 7.7% 2004년 4월 주력품목 출고가 367 367 367 367 4 2004년 12월 가격인상일 2004. 12. 24. 2005. 3. 1. 2005. 4. 16. 2005. 2. 15. ∼ 평균 인상률 7.1% 7.2% 7.4% 7.4% 2005년 4월 주력품목 출고가 401 401 401 401 5 2007년 3월 가격인상일 2007. 3. 1. 2007. 4. 16. 2007. 9. 1. 2007. 4. 1. ∼ 평균 인상률 6.5% 7.3% 8.0% 6.6% 2007년 9월 주력품목 출고가 430 430 417 430 6 2008년 2월 가격인상일 2008. 2. 20. 2008. 3. 1. 2008. 4. 1. 2008. 5. 1. ∼ 평균 인상률 11.9% 12.6% 13.5% 12.5% 2008년 4월 주력품목 출고가 496 496 455 496

Each statement in the defendant's investigation and trial in support of such agreement is reliable when considering not only the specific details about the place and participants, but also all the following circumstances:

① On May 14, 2001, the Plaintiff completed the approval of the internal components of the price increase, notified it to the customer on May 18, 2001, and suspended the price increase on May 21, 2001. The “the data on the examination of the price increase in If the product planning office was prepared on May 14, 2001” (Evidence B (Evidence B (Evidence 64) contains the content that the ex-factory price is determined as 322 won (the same as the amount of △△△△△△△), by raising the ex-factory price from 290 won to 11%, which is the main item. As such, it is difficult to conclude that the Plaintiff’s internal determination of the price increase in the price increase in the Plaintiff and the original unit from the time of failure to notify the customer.

② Samyang delivered the price discount by facsimile on May 24, 2001 (Evidence 60 of this Act). The data on “the current status of the price increase in Samyang Mayang (Evidence 61 of this Act)” prepared on May 22, 2001 (Evidence 61 of this Act) contain the three-dimensional price figures indicating the ex-factory price by item. The data on “the date of application of the price discount” prepared on May 24, 2001 (Evidence 62 of this Act) and “the report on the current status of competition in the price discount” prepared on June 1, 201 (Evidence 70 of this Act), written on June 24, 2001, appears to contain a very detailed description of products that are similar to the products that were manufactured on May 28, 201 (Evidence 60 of this Act) in the process of price adjustment (Evidence 70 of this case’s price increase) and the content of the products that were prepared on May 28, 2001.

③ Since 1998, there was no price increase, and the price increase was a pending issue of the Plaintiff, etc., and immediately after the said meeting, price increase was severed. Even if the matters on price increase were not presented at the above meeting, etc. as an official agenda, it seems possible to implement a collaborative act on price increase solely with the foregoing discussions.

④ Although there are some disagreements or inconsistencys in the contents of the three-dimensional voluntary declarations, the said voluntary declarations were made on the basis of facts or after a considerable time has elapsed since the agreement was reached from Nonparty 3, who died in around 2006, and considering all the circumstances, including the fact that the increase in the second through the second in the instant collaborative act was implicitly carried out through price information exchange, and the subject of voluntary declarations was not clear, it is difficult to deny the credibility of the said voluntary declarations. In other words, it is unlikely that the three-dimensional employees made a false statement to gather the Plaintiff whose relation with the three-dimensional relationship was aggravated after the so-called so-called “Song-dong.”

B) Price equivalent

After the Plaintiff et al. raised the ex-factory price of main products at the same level as 322 won according to the agreement in 2001, from October 2002 to February 201, 201, each company's price increase in order for them to be carried out in six times in total. In particular, the ex-factory price of main products with high market share was determined at the same level from October 2001 to February 2008, respectively.

C) exchange of price information, etc.

In full view of the written evidence Nos. 13, 80, and 83, the witness’s testimony and the purport of Nonparty 2’s argument, it may be acknowledged that there was an exchange of price information on the second increase. There is no dispute between the parties that there was an exchange of price information through e-mail, etc. on the third through the increase of the third through 6). The Plaintiff, etc. was aware of specific price factors by providing each other by providing the date of price discount, price discount details, and the date of production of the product on the price basis by e-mail, etc. around each price increase, and based on such price information exchange, the following materials are deemed to have been prepared.

① As to the increase in Type 3, the material “the time of the increase in the factory price of the product” (Evidence No. 90) and “the trend of the competitor related to the price increase” (Evidence No. 91) written by the coote on January 26, 2004 includes the coo and the progress of the increase in the price of the product, and the price increase plan.

② The “Plan for Price Increase” document (Evidence No. 111) prepared on January 5, 2005 by Yart as to the increase of No. 4 contains the Plaintiff, cyang, and shoper’s price increase in progress, and a plan for price increase. The “Plan for Price 113” document prepared by the Plaintiff (Evidence No. 113) is the same as the “Plan for Price Increase by Item” document (Evidence No. 109) sent to coper on February 25, 2005, and each of the above documents was prepared on or before March 14, 2005, which was completed the approval of the portion in price increase. The materials prepared by the Plaintiff around March 3, 2005, contain the “Business Meeting” document (Evidence No. 112) written by the Plaintiff on March 14, 2005, the coper’s price increase plan and the special support plan.

③ 제5 인상에 관하여 야쿠르트가 2007. 3. 5. 작성한 ‘2007년 라면 가격인상(안)’ 자료(을 제129호증)에는 원고의 가격인상 예상내역 및 삼양, 오뚜기의 가격인상 예정시기 등이 기재되어 있다. 오뚜기가 2007. 2. 28. 작성한 ‘농심 라면, 스낵류 가격 인상 관련 보고’ 자료(을 제130호증)에는 야쿠르트의 가격인상 계획 등이 기재되어 있는데, 이는 야쿠르트가 가격인상 내부품의 결재를 완료한 2007. 3. 7. 이전에 작성되었다.

(d)the relationship between the exchange of price information and the exchange of price;

Inasmuch as the price discount is not carried out at a similar time, but is carried out in order at intervals of three to six months for each company, it shall be considered whether such exchange of information was used as a means to facilitate the agreement of the collaborative act in this case, along with the time of price information exchange.

먼저 가격정보교환의 시기에 관하여 보건대, 앞에서 본 바와 같이 이 사건 정보교환이 대부분 가격인상일 이전에 이루어졌음은 다툼이 없고, 나아가 2001. 5. 14. 오뚜기 제품기획실이 작성한 ‘라면류 가격인상 검토’ 자료(을 제64호증), 오뚜기가 2005. 2. 25. 삼양에 보낸 ‘품목별 가격인상안’ 자료(을 제109호증), 오뚜기가 2007. 2. 28. 작성한 ‘농심 라면, 스낵류 가격 인상 관련 보고’ 자료(을 제130호증) 등과 같이 특정 회사가 가격인상에 관한 최종적인 결정을 하기 전에 다른 회사가 그 가격인상 정보를 반영하여 내부 자료를 작성한 사례가 있었고, 삼양 직원 소외 2도 ‘삼양의 경우 원고가 거래처에 공문을 배포하거나 언론보도가 있기 전에 원고로부터 가격인상 정보를 제공받는다’고 진술하였던 점 등 제반 사정에 비추어 보면 이 사건 정보교환이 가격인상 전은 물론 원고 등의 거래처 통보일 이전에도 이루어졌을 가능성을 배제하기 어렵다.

Next, we examine whether the instant information exchange has been used as a means to facilitate the agreement on the instant collaborative act. At the time of price increase, information on price increase plans and increase details, which are the core elements of competition, should be considered to be to be reflected in the price determination, barring any special circumstances. In addition, it is difficult to prepare accurate and detailed data on the price information of competitors solely based on the information obtained through the press report or self-market survey without price information exchange, and barring special circumstances, such data should be considered to have been reflected in the price increase decision, and thus, it can be deemed that there was a price difference based on the price information exchange.

As to this, the Plaintiff asserts that the Plaintiff’s leading price factors leading to the Plaintiff with a high market share are consistent with the price, and that there is no correlation between the price exchange and the price. However, the Plaintiff’s assertion is difficult to accept in full view of all the circumstances, including (i) the Plaintiff, etc. may reflect the price factors of other companies in the price factors rapidly and accurately through price information exchange, (ii) the Plaintiff, etc. continued to engage in such information exchange for a long time, and (iii) the Plaintiff performed a leading role in the agreement on the increase in the first place; (iv) the Plaintiff performed a leading role in the agreement on the increase in the first place; (iii) the Plaintiff increased the price on December 24, 2004; and (iv) the period of subsidization by the Gu (the Gu) by January 13, 2005; and (iii) the period of subsidization by the Gu, which was determined by the price support organization, taking into account the price factors of other enterprisers, such as extending the period of subsidization at the latest.

E) Inducement of the collaborative act of this case

If the price determination was made under the status of conversion from the prior approval to the autonomous determination, and even if there were government control, the price was set differently within the scope not exceeding the upper limit of the price if the price did not exceed the upper limit of the price. In addition, since consumers tend to sensitively respond to the price change as a representative ordinary living item, as the Plaintiff, a business entity with high market share, like the Plaintiff, has been induced to participate in the unfair collaborative act instead of taking risk according to its independent price.

2) Whether the calculation of penalty surcharge is unlawful

As seen earlier, insofar as an implied agreement on the price discount of a product has been reached in accordance with the price information exchange made in a continuous and repeated manner with respect to the entire price discount product, the product should be deemed the subject of the agreement in this case as well as the main product. Even if there were no different opinions, it is difficult to deny that the product on the total price discount was directly or indirectly affected on the price discount of the main product (see Supreme Court Decision 2008Du17035, Jun. 25, 2009, etc.). Moreover, a part of the product, such as ○○○dong, etc. is included in the concept, and shall be included in the relevant product as long as the product was subject to the agreement in this case or affected on the price discount, and as long as each express and implied agreement was continuously carried out for the same purpose based on a single intent, it cannot be deemed that the period of unfair collaborative act was included in the calculation of the relevant sales amount. Accordingly, the calculation of the sales amount in this case is lawful, and the Plaintiff’s assertion on this part is without merit.

Furthermore, in full view of all circumstances, including the fact that the amount of unjust enrichment gained by the Plaintiff through the instant collaborative act does not seem to be large, and that the instant collaborative act was continuously conducted for 10 years, there were factors in price increase due to raw material price factors, etc. even though it had been continuously conducted for 10 years, and the situation under which price increase was prevented due to prior consultation with the government, and thus, the imposition rate of 2% was applied, and 30% of the discretionary adjustment penalty surcharge was reduced again, it is difficult to view that the instant order to pay the penalty surcharge is too excessive, and therefore, the Plaintiff’s assertion on

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

[Attachment]

Judges Lee Jae-won (Presiding Judge) et al.

Note 1) The increase in title 1 through 6 is referred to as ‘the increase in title 1 or 6' by the sequence 1.

2) In the case of the Plaintiff, the fact that the employee of the Distribution Investigation Team sent the price in the form of e-mail on December 18, 2003, 2003, 2004, 22.2, 2007, 26.26, 2007, and 18 February 18, 2008, to the third e-mail is no dispute between the parties.

3) The Gu’s support scheme provides a customer with a product whose consumer price was increased by applying the previous ex-factory price for a certain period, and thereby, was utilized for the purpose of boosting the inventory of the previous price or increasing the sales closing price. In the event that the Plaintiff, despite the Plaintiff’s price discount, seeks to increase the market share by supplying the product according to the previous price, the Plaintiff may supply the product at the price before the price increase through the Gu’s support. In such a case, if the price discount is not carried out between the two, the business owner will lose its financial structure by reducing the operating profit by raising the price of raw materials. In this case, even if the market share is higher and the financial structure is relatively superior to the Plaintiff whose financial structure is relatively superior, the Gu’s support is to waive the market share through the previous price increase and to follow the Plaintiff’s price discount. In other words, the Gu’s support is mainly for the purpose of inducing other business owner’s price fluctuation, but may also be utilized for the purpose of inducing other business owner’

4) The public notice on the detailed criteria, etc. for the imposition of penalty surcharges prior to the amendment by the Fair Trade Commission’s notice No. 2005-3 of April 1, 2005 was set at 0.5-1.5% or less after the amendment, but Paragraph 2 of the Addenda to the public notice was amended by 0.5-3% or less after the amendment, and Paragraph 2 of the Addenda to the above public notice provides that “where a penalty surcharge is imposed on an act that was terminated before the enforcement of this public notice or even after the enforcement of this public notice (Article 204-7, April 1, 2004), it shall be subject to the previous public notice (Article 2007-15 of the Fair Trade Commission’s notice). However, Article 207-15 of the Addenda to the public notice of the above amendment provides that “where a penalty surcharge is imposed on an act that was terminated before the enforcement date of this public notice, it shall be subject to the entire guidelines for imposition of penalty surcharges (Article 2007-4(1).4).4).