[1] The date when an unfair collaborative act is terminated (i.e., the date when the act of implementation based on the agreement is terminated) and whether such a legal principle applies even where there was a bid collusion on the determination of successful bidders, successful bidders, bidding price, etc. under Article 19(1)1 of the Monopoly Regulation and Fair Trade Act and an act of implementation based thereon (affirmative) / Method of determining whether the act of implementation based on the bidding collusion has been terminated

[2] With respect to a case of violation of the Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Mar. 21, 2012) which was enforced before the enforcement of the Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Jun. 22, 2012), in cases where the period of extinctive prescription under Article 49(4) of the former Act has not elapsed since the enforcement of the current Act, whether Article 49(4) of the current Act is applicable (affirmative) and whether such interpretation violates the principle of protection of trust in legal disadvantage or administrative disposition under the Constitution (negative)

[1] Article 19(1)1 of the Monopoly Regulation and Fair Trade Act / [2] Article 13 of the Constitution of the Republic of Korea; Article 49(4) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 11406, Mar. 21, 2012); Article 49(4) of the Monopoly Regulation and Fair Trade Act (Amended by Act No. 17290, May 19, 202); Article 3 of the Addenda (Amended by Act No. 17290, Mar. 21, 2012); Article 4(2) of the Administrative Procedures Act

[1] [2] Supreme Court Decision 2018Du58295 Decided December 24, 2020 (Gong2021Sang, 285) / [1] Supreme Court Decision 2004Du11275 Decided March 24, 2006 (Gong2006Sang, 728), Supreme Court Decision 2015Du37396 Decided May 28, 2015 (Gong2015Ha, 890)

AS Port Co., Ltd. (Law Firm Han, Attorney Park Jong-chul, Counsel for the plaintiff-appellant)

Fair Trade Commission

Seoul High Court Decision 2018Nu106 decided September 20, 2018

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the termination date of the first collaborative act in this case

Article 19(1)1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) does not mean the date on which the agreement was reached but the date on which the implementation of an unfair collaborative act is terminated (see Supreme Court Decision 2004Du11275, Mar. 24, 2006). This legal doctrine applies to cases where the bidding collusion related to the determination of successful bidders, successful bidders, bidding price, etc. under Article 19(1)8 of the Fair Trade Act and the implementation thereof was conducted. Whether the implementation of a bidding collusion based on the bidding collusion has been completed shall be determined individually and specifically on the basis of the contents of the relevant agreement, by comprehensively considering various factors, such as the specific scope, mode, agreement, etc. of the intended implementation, the date on which the unfair collaborative act is terminated (see Supreme Court Decision 2004Du11275, May 28, 2015).

Examining the reasoning of the lower judgment in light of the record, the lower court’s determination that the collaborative act No. 1 of the instant case terminated on February 11, 2020 is justifiable in light of the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the time of termination of the collaborative act based on a tendering

2. As to the prescription period for the disposition applicable to the first and second collaborative acts of this case

A. The main text of Article 49(4) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Mar. 21, 2012; hereinafter “former Act”) which was in force at the time of the instant collaborative act, provides that “The Fair Trade Commission shall not issue an order to take corrective measures or impose a penalty surcharge, etc. against the relevant violation if five years have elapsed from the date on which the act of violating the provisions of this Act was terminated.” However, Article 49(4) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Mar. 21, 2012; hereinafter “former Act”) provides that “The first investigation into the relevant violation of Article 49(4) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 17290, May 19, 201; hereinafter “former Act”) shall not be imposed upon the date on which the amendment of Article 49(4) of the former Act commenced from the date of the first investigation into force.”

In full view of the contents of Article 49(4) of the current Act, the amendment’s purpose is to extend the period of prescription of a disposition, which is the exclusion period against a corrective measure or imposition of a penalty surcharge, etc., in order to enforce a law more faithful and strict with respect to any violation of the Fair Trade Act gradually complicated and consistent, and the text and structure of the supplementary provision of this case, which provides for the application of Article 49(4) of the current Act, and the supplementary provision of this case, including the supplementary provision of this case, and the supplementary provision of this case, have no transitional provisions that provide for the application of Article 49(4) of the former Act after the enforcement of the current Act, with respect to “the first investigation” committed before the enforcement of the current Act, unless the period of prescription of a disposition under Article 49(4) of the former Act has already been imposed, it shall be deemed that Article 49(4) of the current Act is applied at the time of the enforcement of the current Act. As such, even if interpreted as such, it does not violate the principle of law in favor or protection of administrative disposition (see).

B. According to such legal doctrine, the lower court was justifiable in applying Article 49(4) of the current Act to the statute of limitations on the disposal of each of the collaborative acts in this case where the Defendant first conducted a field investigation on June 22, 2016, where the period of prescription under the former Act on the First and Second Collaborative Acts did not have yet to elapse on June 22, 2012, which was the enforcement date of the current Act, and seven years have not yet passed since the enforcement date of the current Act. In so doing, the lower court did not err by misapprehending the legal doctrine on the interpretation and application of the statute of limitation on the disposal of each of the collaborative acts under the Fair Trade Act, contrary to what is alleged in the grounds of appeal.

3. As to whether the application of the imposition standard rate constitutes deviation or abuse of discretionary power

Based on its stated reasoning, the lower court determined that the Defendant’s collaborative act of this case constituted “seriously violating good faith” and that there was no violation of the principle of proportionality or any other violation of the discretionary authority in calculating penalty surcharges by applying the imposition standard rate of 8%.

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 misapprehending the legal doctrine regarding the deviation and abuse of discretion or the principle of proportionality, or by exceeding the bounds of

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)