[1] The case holding that the previous provisions shall apply to the calculation of penalty surcharges for an unfair collaborative act as long as the agreement to engage in an unfair collaborative act with respect to the interest rate of non-dividend retirement insurance interest rate is commenced prior to the enforcement of the amended Monopoly Regulation and Fair Trade Act, etc. and continued thereafter

[2] In a case where the Fair Trade Commission imposed a penalty surcharge on an unfair collaborative act and imposed a single penalty surcharge on several violations, but only the imposition of a penalty surcharge on some violations is illegal, whether the order to pay a penalty surcharge should be revoked in its entirety (negative)

[1] Article 8 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 8631 of Aug. 3, 2007) (amended by Presidential Decree No. 20360 of Dec. 31, 2004), Article 22 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 20360 of Nov. 2, 2007) / [2] Article 2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 8631 of Aug. 3, 2007)

[2] Supreme Court Decision 2004Du1483 decided Dec. 22, 2006 (Gong2007Sang, 224)

Samsung Life Insurance Co., Ltd. (Law Firm Gyeongsung, Attorneys Cho Yong-hwan et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Democratic, Attorneys Yoon Jae-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu33909 decided June 10, 2009

Of the part of the judgment below against the defendant, the part corresponding to the estimated interest rate of the fixed interest rate-based retirement insurance, and the amount of penalty surcharge for unfair collaborative acts on the interest rate of the interest rate-based products with interest rate-based retirement insurance shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 8 of the Addenda to the Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004 and amended by Act No. 8631 of Aug. 3, 2007; hereinafter "the amended Act") provides that "The previous provisions shall apply to the acts before this Act enters into force and their status are terminated before this Act enters into force or even after this Act enters into force," while Article 8 (4) of the Addenda to the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 18768 of Mar. 31, 2005; hereinafter "the amended Enforcement Decree") provides that "The former provisions of this Decree shall continue to apply to the acts before this Decree enters into force before this Decree enters into force, such as the termination of the former provisions before this Decree enters into force, or after this Decree enters into force, after the amendment of the Enforcement Decree of the Fair Trade Commission (amended by Presidential Decree No. 20360 of Nov. 2, 2007; hereinafter referred to as "the amended Act").

According to the records, it is reasonable to view that the agreement to conduct an unfair collaborative act with respect to the interest rate on the non-dividend retirement insurance of this case was prior to the enforcement date of the amended Act, at least on April 1, 2005, and as long as the unfair collaborative act with respect to the interest rate on the non-dividend-type product of this case was commenced prior to the enforcement date of the amended Act, etc. and continued after the enforcement date of the amended Act, the previous provision shall apply to the calculation of the penalty due to an unfair collaborative act with respect to the interest rate on the non-dividend-type product of this case in accordance with the above legal principles. Thus, the court below's determination that the calculation of the penalty surcharge by applying the amended Act, etc. is unlawful, and there is no violation of the rules of evidence as asserted in the grounds of appeal

2. Regarding ground of appeal No. 2

Where the Fair Trade Commission orders the payment of a penalty surcharge for multiple violations when it imposes a penalty surcharge for an unfair collaborative act, but only the imposition of a penalty surcharge for a part of multiple violations is illegal and there are data that can calculate the penalty surcharge based on a part of such violations in a lawsuit, only the part corresponding to the amount of a penalty surcharge for a part of such violations shall be revoked even if one order for payment of a penalty surcharge is issued (see Supreme Court Decision 2004Du1483, Dec. 22, 2006).

According to the above legal principles and the records, the Defendant ordered the Plaintiff, etc. to pay one penalty surcharge on unfair collaborative acts with regard to the scheduled rate of interest rate-based goods, interest rate-based goods with interest rate-based retirement insurance, and interest rate-based goods with interest-free dividend retirement insurance. However, among them, only the imposition of penalty surcharge on unfair collaborative acts with regard to the interest rate-based goods with interest-free dividend retirement insurance, is illegal, and there is data to calculate the amount of penalty surcharge based on unfair collaborative acts with regard to the interest rate-based goods with interest-free dividend retirement insurance, and only the amount equivalent to the amount of penalty surcharge on unfair collaborative acts with regard to the interest rate-based goods with interest-free dividend retirement insurance, interest rate-based goods with interest-based retirement insurance, among the above

Nevertheless, the judgment of the court below that revoked all of the penalty surcharge amounting to the estimated interest rate of tangible dividend retirement insurance products and the amount equivalent to the amount of penalty surcharge on unfair collaborative acts as to the interest rate of the interest rate of tangible dividend retirement insurance products that the plaintiff did not dispute illegal among the penalty surcharge payment order of this case, is erroneous in the misapprehension of legal principles as to partial revocation of penalty

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part corresponding to the estimated interest rate of the fixed interest rate of the retirement insurance for pay dividends, and the amount of penalty surcharge for unfair collaborative acts on the interest rate of the fixed interest rate of the retirement insurance for pay dividends, shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal by the defendant shall be dismissed, and it is so decided

Justices Kim Nung-hwan (Presiding Justice)