(영문) 서울고등법원 2016. 7. 7. 선고 2015나2015960 판결

A. The Defendants jointly pay to the Plaintiff 59,436,314,700 won with 55% interest per annum from February 15, 2012 to July 7, 2016, and 20% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims against the defendants are dismissed.

2. 7/10 of the total litigation costs due to the principal lawsuit shall be borne by the Plaintiff, and the remainder by the Defendants, respectively.

3. Paragraph 1(a) of this Article may be provisionally executed.

Purport of claim, purport of appeal and incidental appeal

Purport of claim

The Defendants jointly pay to the Plaintiff 198,884,039,200 won with 5% interest per annum from February 15, 2012 until the last delivery date of a copy of the application for modification (as of November 27, 2014) and 20% interest per annum from the next day to the day of full payment.

Purport of appeal

[2] The judgment of the court of first instance is modified as follows. The Defendants jointly pay to the Plaintiff 106,139,898,000 won with 5% interest per annum from February 15, 2012 to January 23, 2015, and 20% interest per annum from the next day to the day of full payment.

[The part of the judgment of the court of first instance, which ordered the Plaintiff to pay more than 16,401,631,000 won to the remainder of the Defendants except for Defendant Han Electric Co., Ltd., is revoked, and the part of the judgment against the said Defendants is revoked. The Plaintiff’s claim against the said Defendants corresponding to the revoked part is dismissed.

Purport of Incidental Appeal

[Defendant Han Electric Co., Ltd.] Of the judgment of the first instance, the part against Defendant Han Electric Co., Ltd. ordering the Plaintiff to pay more than KRW 16,401,631,000 to the Defendant Han Electric Co., Ltd. is revoked, and the Plaintiff’s claim against Defendant Han Electric Co., Ltd. corresponding to the revoked part

[The judgment of the court of first instance rejected the intervenor's application for intervention as an independent party, and accepted part of the plaintiff's main claim. The above intervenor did not appeal, and only the other defendants except the plaintiff and the defendant Han-dong Co., Ltd. filed an appeal against part of the lost part, and thus, the part which rejected the application for intervention as an independent party among the judgment of the court of first instance became final and conclusive separately from the plaintiff's main claim against the defendants (see Supreme Court Decision 91Da4669, 4676, May 26, 1992).

Reasons

1. Presumed factual basis

The reasoning for this Court's explanation is as stated in "1. Basic Facts (including attached Form 1, however, the Attached Form 1 of the judgment of the first instance shall be replaced by Attached Form 1 of this Judgment)" in the judgment of the first instance except for the relevant part after completion as follows. Therefore, it shall be cited as it is in accordance with Article 420 of the Civil Procedure Act.

(a) by inserting up to 8 pages the term “inhuman vinyl finite wire” with “inhuman vinyl finite wire”

(b) from 18th to 19th 5th eth eth eth eth eth eth eth eth eth eth eth eth.

On February 7, 2013, the Seoul High Court rejected the order for payment of penalty surcharges on the grounds of voluntary report, which is a prior disposition, in the event that the amount of penalty surcharges has been reduced on the grounds of voluntary report, on February 1, 2013, on the grounds that the subsequent disposition of reduction of penalty surcharges is not separate subject to appeal litigation, and thus, revoked the order for payment of penalty surcharges on the grounds that the voluntary report date was erroneously applied as the termination date of the collaborative act, and revoked the order for payment of penalty surcharges on the grounds that the basic imposition rate of penalty surcharges was erroneously applied to the Defendant KON Korea and KON Korea, and that the order for correction was lawful on the grounds that the above Defendants’ remaining claims and the rest of the company’s remaining claims were all dismissed on the grounds that the Fair Trade Commission’s 22 companies including KON Korea and the Fair Trade Commission’s 20-year application of penalty surcharges on the remaining portion of the final disposition of the Korea Fair Trade Commission’s 20-year extinctive prescription, and that the aforementioned order for cancellation of the aforementioned part of the final disposition was revoked Korea’s.

Meanwhile, in accordance with the purport of the foregoing Supreme Court decision, the Fair Trade Commission rendered a disposition of revoking part of the penalty surcharge order against the remaining companies except for Defendant NexEX Korea and Kukdong Cable among the aforementioned 22 companies under Article 2015-298 of the plenary session’s resolution on August 7, 2015, and completely withdrawing the lawsuit on September 16, 2015, 2015, except for Defendant Kukdong Cable, for which the lower judgment became final and conclusive.

After that, the Fair Trade Commission filed an appeal against it, and the appeal by the Fair Trade Commission was dismissed on January 29, 2015 (Supreme Court Decision 2014Du1819).

(d) modify “including household numbers” of 19, 14, and 15 pages to “including household numbers, unless otherwise specified; hereinafter the same shall apply);

2. Issues of the instant case

A. The nature of the Defendants’ joint tort liability

B. Scope of the defendants' liability for damages

C. Limitation on the Defendants’ liability for damages

3. Determination

A. The nature of the Defendants’ joint tort liability

1) The part concerning the act that became the object of the instant disposition (attached Form 1 Nos. 1 to 350, each purchase contract entered into)

【Plaintiff’s Claim】

The Plaintiff asserted that the Plaintiff, including the Defendants, committed an unfair collaborative act prohibited under Article 19(1)1, 3, and 4 of the Fair Trade Act, and that the Defendant Electric Cable Association violated Article 26(1)1 of the Fair Trade Act as a trade organization, and thus, the Defendants are liable to compensate for damages suffered by the Plaintiff as a joint tortfeasor pursuant to Article 56 of the Fair Trade Act, as a joint tortfeasor, since the Plaintiff’s electric power purchase bid for the annual unit price contract items from August 1, 1998 to September 207, by allocating the quantity in advance, by selecting the expected recipients at a higher price than an average of 9.4% compared to the expected price, and by receiving the successful bid at a higher price than an average of 9.4% of the estimated price.

[Dissenting of the other Defendants except the Defendant Han Han Electric Cable]

The remaining Defendants except the Defendant Han New Cable were designated as competing products among the electric power lines ordered by the Plaintiff, for which high level of technology is not required. The said three items were bid and contract made around March 2006 and around July 2007, and tender and contract made around the end of 2005 and around the end of 2006. In light of the fact that they were small and medium enterprises and Defendant Electric Cable Cooperative, the Defendants involved in the collusion of the said three items were small and medium enterprises. At least from the bidding in 2006, the Defendants did not bear the liability of compensation for the remaining items except for the above three items and the above three items. The Defendants did not participate in the collusion.

[Judgment]

According to the facts cited by the court of first instance, the defendant et al. agreed on the share distribution ratio between large enterprise groups and small and medium enterprise groups with regard to the conclusion of each purchase contract listed in the separate list Nos. 1 through 350, and agreed on the share distribution ratio between large enterprise groups and small and medium enterprise groups for each company belonging to the relevant enterprise group. The agreement was concluded to select a successful bidder for the purpose of allocating the quantity according to the agreed share ratio, and the bid price and the bid price increase in the plaintiff's estimated price were carried out by agreement according to the bidding scenario for the prevention of the decline in the successful bid price and the increase in the plaintiff's estimated price, and the fact that the successful bidder's bid price was once again distributed pursuant to the above agreement can be acknowledged. Such acts were jointly committed by the defendant et al. by jointly restricting the production and trade of power lines to be purchased by the plaintiff and determining, maintaining, and changing the price of each purchase, thereby violating Article 19 (1) 1 and 3 of the Fair Trade Act, which did not unfairly restrict competition in violation of Article 26 (19) of the Fair Trade Act.

In addition, the following circumstances, which can be recognized by this court based on the facts cited in the judgment of the court of first instance and the purport of the entire arguments in Gap evidence Nos. 1 through 400, namely, ① the agreement on the quantity distribution ratio between large enterprises and small-medium enterprises regarding the total bidding quantity in order to prevent price decline due to competition in the plaintiff’s electric power purchase bid, ② the agreement on the distribution ratio between large enterprises and small-medium enterprises with total bidding items, ② the distribution ratio between large enterprises with total bidding items, 21.9%: 78.1%, except where the 600V electric wires were set at 78.1% (as a result of the implementation, the entire 600 V electric wires were distributed to small-medium enterprises) and three small-medium enterprises with total bidding items after 201, it is reasonable to view that the 3000V electric wires were not designated as one of the small-medium enterprises with total bidding items, and the 3000V electric wires were also designated as one of the small-medium enterprises with total bidding items.

Therefore, as a joint tortfeasor, the Defendants are obligated to compensate the damages incurred by the Plaintiff due to such illegal collusion pursuant to Article 56 of the Fair Trade Act. The Plaintiff’s above assertion has merit.

2) The part concerning the purchase contract for underground power lines (TR CN/CV-W) for the purpose of strengthening smoke in 2003 (attached Table 1 Nos 351 through 357)

【Plaintiff’s Claim】

The plaintiff asserted that the Fair Trade Commission ordered the above power line for the first time around 2004 with respect to the underground power line (TR CN/CV-W), but the plaintiff ordered the above power line on June 24, 2003, and the bid for the power line was made during the period when there was a basic agreement between the electricity manufacturers, including the defendants, on the total bidding quantity and the distribution ratio by item. Thus, the defendants' collusion is recognized in the above power line purchase bidding. Thus, the defendants are also liable for joint tort even for the above 2003 purchase bid portion.

[Dissenting of the Defendant]

The Defendants asserted that they did not agree with the purchase bid for the teR CN/CV-W for the reinforcement of the exhaustive power line (TR CN/CV-W) made in 2003.

[Judgment]

According to the facts of the judgment of the court of first instance cited by this court and the statements in Gap evidence 219, 220, 221, each of the evidence cited by this court, the plaintiff entered into a purchase contract with some companies including the defendant selected as successful bidder on July 4, 2003. The bid price ratio of the successful bidder company was very close to the estimated price of 98.63% through 99.84% compared to the other bidding which was the object of the disposition of this case by the Fair Trade Commission. The successful bidder among the participating companies in each bidding was lower than the estimated price, and the company other than the company responded to each of the bidding of this case by responding to higher bidding than the estimated price.

However, the following circumstances, which can be acknowledged by the court of first instance based on the facts cited in the judgment of the first instance and the purport of evidence No. 1 and 2, namely, ① the Plaintiff’s prior purchase of electricity takes place on a one-year basis. The Defendant et al. also agreed on the volume distribution ratio between large enterprises and small-medium enterprises, bidding price, etc. in 198, and agreed on the bidding from 1999 to 200, although the bidding was conducted, it is difficult to view that the Defendants were unable to reach an agreement on the bidding in 200, based on the circumstance that the Defendants participated in the bidding 200, and thus, it was difficult to conclude that the Defendants were unable to reach an agreement on the bidding 400,000,000,000,0000,0000,0000,0000,000,0000,000,000,000).

(iii) reorganization;

Therefore, the Defendants are jointly and severally liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to the Defendants’ collusion with respect to each purchase contract entered into before October 19, 2001 (attached Table 1 Nos. 1 to 104) and the teR-CN/CV-W purchase contract (attached Table 1 Nos. 351 through 357) for the purpose of strengthening smoke in 2003, excluding the remaining purchase contract (attached Table 1 Nos. 351 through 357).

B. Scope of the defendants' liability for damages

1) Calculation method of damages

A loss caused by an illegal bidding collusion refers to the difference between the successful bid price formed by such collusion and the price formed in the event there was no such collusion (hereinafter referred to as “provisional competition price”). Here, the virtual competition price should be calculated by the method of excluding only the price fluctuation portion caused by the collusion while maintaining the other factors for price formation in the market in which the collusion was committed as it is. Although it is difficult to accurately measure the virtual competition price, it is difficult to say that it is not dependent on the simple trend. Thus, if the appraisal, etc. on the amount of damages is judged to have been properly presumed by scientific and reasonable methods based on the theoretical basis and data, the court shall order compensation based on such calculated amount of damages (see, e.g., Supreme Court Decision 2010Da93790, Nov. 29, 2012).

(ii) method of estimating virtual competitive prices;

(a)The virtual competitive price shall be determined at the price established when all other market situations in the same situation excludes only the effect of collusion in the same situation, and in order to estimate it only by controlling other factors affecting the price and examining only the effect of collusion. The method of estimating the virtual competitive price is ① front and rear intersection, ② comparative market, ③ double segment method, ④ cost-afforcing method, etc.

In this case, the Nonparty (hereinafter “instant appraiser”) calculated the virtual competitive bid price in accordance with the Before and after the comparison method. In the case of the Before and after the comparison method, the price at the time when there was no collusion between the same market for the same type of product and the time when there was no collusion may vary due to the flow of time, in addition to the collusion. In order to use this method, the market price at one same market may vary due to various causes, in addition to the collusion, in addition to the collusion. The effect of the bid collusion can be inferred after controlling various other conditions that may affect the price. As seen below, as long as the appraiser calculated by the method of comparison of the “the virtual competitive bid price ratio” in the estimated price linked with the production cost of the instant appraiser, there appears to be any control over any other factors affecting the price in addition to collusion, and the Plaintiff is supplied with many electric wires from a large number of suppliers by purchasing electric wires of items 12 and 52, and there is no similar domestic and overseas markets, so it is difficult for the Defendants to use it before and after the comparison method.

B) Meanwhile, according to the appraiser’s appraisal result, in the instant case, the appraiser estimated a competitive price according to the “successful bid rate” of the collusion period and the “successful bid rate” of the nonsuccessful bid period. The bid price ratio is expressed in the figures of the successful bid price compared to the projected price. Based on the factors affecting the product price, it can be acknowledged that, based on the factors affecting the product price, the appraiser estimated a “provisional competitive bid price ratio” of the projected price compared to the projected price, instead of promptly estimating the virtual competitive bid price, and that, by comparing it with the estimated price of the collusion period, calculated the competitive price

The plaintiff's contract for the purchase of electricity is subject to 12 kinds of electric power lines of 52 items. Among these products, there are only 12 items of electric power lines of 52 items. However, there are some products on which bidding has been conducted only during the whole period, and there is a limit to estimating virtual competition prices by each type, such as not sufficient observation values, and there is a difference between the supplier and the competitive appearance. If the method of estimating the successful bid price is selected by the method of estimating the successful bid price, it has the advantage to calculate virtual competition prices by utilizing the successful bid rate of the group of products with the same group of products or similar competitive situation. As seen in the facts of the first instance judgment cited by the court, as seen above, when ordering a power line bidding contract, the plaintiff determines the price based on the cost of electricity, labor cost, etc., and the estimated price is a small price based on the preliminary price base calculated at a certain price at a certain level, taking into account the market situation. According to the appraiser's appraisal result of this case, it can be seen that there is a relatively different change in the estimated price.

Therefore, in the instant case where the adequacy of the estimation of the estimated price is verified to some extent, the presumption of the “provisional competitive bid bid ratio” that was formed in the event of absence of collusion, and the method of calculating the amount of damages by comparing it with the estimated price of the collusion period seems to be appropriate in a way that can estimate the effect of the bid collusion after controlling other conditions that could affect the price in the same market.

C) In general, the Plaintiff’s amount of damages or the Defendants’ unjust enrichment due to an unfair collaborative act is calculated in the formula of “(actual unit price - virtual competitive unit price) 】 quantity of purchase.” However, in this case, “actual unit price 】 quantity of purchase” is the actual successful bid price, which is equal to “successful bid price 】 the estimated price 】 the amount of the actual successful bid,” and “provisional competitive unit price 】 the quantity of purchase 】 the amount of the actual competitive bid 】 the amount of the estimated bid 】 the amount of the projected price. As such, the amount of damages for the case

The amount of damages = (The actual successful bidder ratio - the competitive bidder ratio) ¡¿ the estimated price.

3) Calculation of damages

(A)the calculation of competition periods;

In order to use it in comparison with the price of the competition period and the collusion period, it should first be determined at the time of competition in which there is no collusion between the enterpriser. In general, the period prior to the collusion, the period when the agreement has been reversed, and the period after the collusion may be selected at the time of competition. In addition, in case where observation data is used to estimate the virtual competition price by using the collusion period, (i) if there is only before the collusion period, it is used to estimate the virtual competition price, and (ii) if there is only after the collusion period, it is used to estimate the virtual competition price in comparison with the price before and after the collusion (the method to estimate the price before and after the collusion), and (iii) if there is only after the collusion period, the collusion method after the collusion (the method to estimate the virtual competition price compared with the price after the collusion period) is used to estimate the virtual competition price in comparison with the price after the collusion period.

However, when determining the time of collusion as the time of competition, if there was actual collusion between the business operators prior to the time of collusion determined by the policy authorities, the competitive price based on the period determined by the policy authorities as the time of collusion may be presumed to be excessive and reduced in unjust enrichment. On the other hand, if the collusion was formed at the time of collusion with the beginning of the competition, and if the business operator had formed a pro rata price book prior to collusion, the estimated competition price based on the price prior to collusion may be reduced, and damage caused by collusion may be excessively assessed.

Meanwhile, even in cases where a period after the termination of collusion is determined as the time of competition, due to practices that set the price at the time of collusion by mutual cooperation during the period of collusion, the price may be set higher than the competitive price, or the price lower even after the termination of collusion due to the decline in the price. In addition, the price may be maintained higher in order for the business operator who implemented collusion to ease liability in civil trials that may lead to the conclusion of the collusion. In such cases, if the price is used as the competitive price after the collusion, the effect of collusion would be reduced. On the other hand, if the business operator temporarily lower price to avoid criticism of collusion after the termination of the collusion, the competition price based on the price may be a problem that is calculated lower than the actual competitive price.

However, as seen earlier, the virtual competitive price is not the price existing at the virtual price formed when all other market conditions are excluded only from the effect of collusion in the same situation in the same situation during the period of collusion. However, the virtual competitive price can be presumed by scientific and reasonable means based on theoretical grounds and materials. The virtual competitive price may vary considerably depending on how data used in such presumption are selected and used. Thus, in order to more accurately estimate the virtual competitive price and the amount of damages, unless there are special circumstances, it is more reasonable to calculate by including all the competitive periods that may affect the calculation by including the virtual competitive price and the amount of damages on the basis of only a specific competitive period, rather than to estimate the virtual competitive price and amount of damages.

B) Calculation of specific damages

(1) As a result of the appraiser’s appraisal of this case, the following facts can be acknowledged in full view of the testimony of the appraiser of this case.

① As seen earlier, the appraiser of the instant case did not reach an agreement between the Defendant, etc. around October 1999 (hereinafter “instant collusion”) and agreed again on August 30, 200, which continued until September 2007. After September 2007, it does not appear that there was an agreement between the Defendant, etc. and the implementation thereof. As such, the appraiser of the instant case considered the collusion period (hereinafter “instant collusion period”) from around August 200 to September 207, 199 to the end of September 207, 200, and the remainder of the excluding this period as the non-constitation period (hereinafter “instant non-constitation period”).

② The appraiser of the instant case divided the electric power lines purchased by the Plaintiff into public power lines, underground power lines, low voltage clothes, and bareboat lines, depending on the characteristics of the market, competitive aspects, etc., and calculated the successful bid price ratio for the instant collusion period and non-conforming period according to each product group.

Table (units: %) Products Co., Ltd. (units: %) Products Co., Ltd. and 5.7.79.43, 199.17 9.63 9.649.7 9.43, 1999, 80.374.74.75, 2007 75.75.7 85.797 95.83 83.83 983.83 98.07 9.07 9.9.06 9.07 9.9.06 9.89.98 298.88, 20098 97.84, 97.84, 97.9788, 1997.86.85, 1997, 1997.84, 2008.84, 97.86, 1997

③ The appraiser of the instant case sought an average bid price rate by simply averaging the annual bid price rates for each product group by applying the same weight for each product group by simply averaging the annual bid price rates for each product group. However, for the adjudication of the full bench, the average bid price rate by applying the weighted average weight according to the weight of discount that gives the smallest weight from the collusion period to the time in the year distant from the collusion period. In addition, in the case of the discount method weight, the appraiser of the instant case grants 1 weight to each product group to the winning bid rate for the year most adjacent to the collusion year, and calculated the average bid price rate by applying the weighted average weight by applying the weighted average weight to each product group, as there are no objective data to determine the amount of weight deduction to d (in the case of a value less than 1, the appraiser of the instant case arbitrarily set the amount of weight deduction to 0.05 or 0.1).

④ As above, the appraiser of this case deemed the average bid price rate calculated as above as the virtual competitive bid rate, and estimated the amount of damages for each purchase contract (However, since there was no estimated price with respect to each purchase contract listed in Nos. 47,54, 59, or 63 listed in attached Table 1 list, the bid price rate was formed as the same as the tender made with respect to the same item in the same year, and presumed the estimated price in relation to the bid price rate and the contract unit price (=successful bid price/successful bid price). If the actual bid price rate is lower than the virtual competitive bid rate, the amount of damages was 0 if the actual bid price is lower than the virtual competitive bid rate, the amount of damages was 0). In the case of the contract listed in attached Table 1 list No. 105, 105, or 350, the amount of damages was estimated as 84,909,000 won calculated by comparing the virtual competitive bid price calculated by equal method.

⑤ The appraiser of the instant case appeared as a witness in the court, and testified to the effect that the amount of damages was estimated by applying equal weight to the entire non-conforming period, on the grounds that he did not find the grounds that the special year should be excluded from the competitive period during the non-conforming period.

The results of the expert witness’s appraisal shall be respected unless there exist significant errors, such as the method of appraisal, etc., contrary to the empirical rule or unreasonable (see Supreme Court Decision 2004Da70420, 70437, Feb. 22, 2007).

According to the above facts, barring any special circumstance, the amount of damages sustained by the Plaintiff due to the Defendants’ collusion on each contract listed in [Attachment 1] Nos. 105 through 350 as to each contract is KRW 84,909,021,00, which is the amount of damages estimated by comparing the virtual competitive bid bid ratio calculated by the appraiser of this case according to the equal weight method, with the estimated price.

4) Judgment on the Plaintiff’s assertion

【Plaintiff’s Claim】

The Plaintiff asserts that, where the collusion has continued for a long time, the practice formed during the collusion period may affect the conclusion of the collusion, and that, in order to reduce the amount of damages caused by the collusion, the parties to the collusion intentionally higher price than the price that maximizes profit after the collusion. Since 2008, the Defendants voluntarily asserted that, since 2008, the estimated price was lower than the existing one, the successful bid rate has been higher. Since 2008, the Defendants’ small and medium electric wires manufacturers from 2008, the number of bidders participating in the bidding by forming a consortium and the average bidder’s participation in the bidding is considerably decreased compared to the collusion period, and thus, the period after the completion of the collusion cannot be included in the competition period after the collusion. As such, the Plaintiff asserts that the amount of damages should be calculated based on the virtual competitive bid rate calculated by including only the 2007 competitive bid period immediately before and after the collusion in 199 and immediately after the collusion.

[Judgment]

A) Comprehensively taking account of the overall purport of arguments and arguments as a result of the appraiser Gap evidence 281 through 399, the average bid price ratio of the plaintiff's electric power purchase contract from 2000 to 2006 was maintained from 99% (average 99.43%) during the collusion period, but it was 74.75% in 199 and 83.83% in 207 immediately after the collusion period was terminated, while the collusion period was 2008 to 2011, the average bid price ratio of the plaintiff's electric power purchase contract was 17 in the case of 1999 and 13 in the case of 207, the average bid price ratio of the plaintiff's electric power purchase contract was 5.36 to 98.31% in the year after the collusion period was 2008.

B) However, on the other hand, in light of the following circumstances that can be acknowledged by comprehensively taking account of the facts described above, Gap evidence 2, Eul evidence 9, Eul's testimony of the appraiser of this case, and the overall purport of the arguments as a result of the appraisal of this case, it is reasonable to presume the amount of damages by including the period from 2008 to 201, which is after the collusion period, in the competition period, since it is determined as a reasonable analysis method, the plaintiff's above assertion should not be accepted.

① In order to estimate the virtual competitive price and the amount of damages more accurately as seen earlier, it is desirable to include all materials that may affect the calculation. In the instant case, if there are all available observation data prior to and after the collusion, it is reasonable to estimate the virtual competitive bid bid ratio in comparison with the bid price ratio prior to and after the termination of collusion, barring any special circumstance.

② If the practice actually formed during the collusion period had influenced the bid price rate after or after the termination of the collusion period, as alleged by the Plaintiff, the Defendants’ bid price rate should have been fully lowered immediately after the collusion period expires. The Plaintiff’s average bid price rate from 2000 to 2006 under the collusion period was maintained at 98-9% (average 99.43%) but the Plaintiff’s average bid price rate from 2000 to 2006 was lowered to 83.83% in the year 2007 immediately after the collusion period was terminated, and the average from 2008 to 2011 was maintained to 95.36 to 98.31% in the year 201, and thus, it is difficult to readily conclude that the average bid price rate was higher from 2008 to 2011 as the impact of practice formed during the collusion period.

③ Furthermore, on May 4, 2012, the Fair Trade Commission ordered the Defendants to take corrective measures and pay penalty surcharges on the grounds of the instant agreement and implementation thereof. It is difficult to readily conclude that the Defendants, who did not take any such measures as corrective measures by the Fair Trade Commission, anticipated the Defendants to file a lawsuit seeking damages in advance from 2008 to 2011, and intentionally bid at a price higher than that that that which would cause maximize profit in order to reduce the amount of damages.

④ The appraiser of the instant case confirmed that the price should be determined in the same way as the period of the collaborative act and the period of competition, one of the most important prerequisites when considering the bid price ratio for the expected price as one of the bidding conditions. As a result, it was confirmed that the relationship between the assessment price and the estimated price does not seem to have manifest differences between the bidding price and the non-conforming price. Accordingly, it is difficult to readily conclude that the estimated price was particularly lower in comparison with the production cost since 2008.

⑤ Even if, as alleged by the Plaintiff, small and medium electric wires manufacturers from 2008 constituted a consortium through the Defendant Electric Cable Cooperative and reduced the average number of bidders, the Defendant Electric Cable Cooperative may carry out joint projects, such as production and receipt of orders, as a cooperative established under the Small and Medium Enterprise Cooperatives Act (Article 35(1)1 of the Small and Medium Enterprise Cooperatives Act), and as long as it was possible to make a bid through the Defendant Electric Cable Cooperative at the same time as after the collusion period even during the collusion period even during the collusion period, it cannot be concluded that the Plaintiff’s assertion alone does not change in objective market conditions before and after the collusion period, or that the bid price formed by organizing a consortium permitted by law after the collusion period is not the competition price.

(6) The appraiser of the instant case appeared as a witness in the instant court and confirmed that there was a difference between the average number of bidders after 2008 at the time of appraisal in the first instance trial, and the average number of bidders during the collusion period. However, since the number of bidders during the collusion period can be affected by the collusion itself, the appraiser testified to the effect that the amount of damages was estimated by including the period from 2008 to 2011 in the competition period, without considering such difference.

5) Determination as to the defendants' assertion

【Defendant’s argument】

The defendants asserted that since the defendants' bid price rate in 199 and 2007 was not the successful bid rate formed in a normal market, the above time should not be included in the competitive period. Thus, the defendants asserted that since 2008 to 2014, after the expiration of the collusion period, the amount of damages suffered by the plaintiff should be calculated by the defendants due to the defendants' collusion act.

[Judgment]

A) Comprehensively taking into account the aforementioned premise facts, Eul evidence No. 10, and the purport of the entire argument in the testimony of the appraiser of this case: ① The average bid price ratio of the Plaintiff’s electric power purchase contract from 2008 to 2011 was maintained at an average of 95.36 to 98.31% on an average of 95.36 to 98.31% on the date immediately before the collusion period, while 74.8% on the year immediately before the collusion period and 83.83% on the year 2007 on the date immediately after the collusion period expires; ② the appraiser of this case testified to the effect that the Defendants were included as witnesses at this court in the year 199 and 2007, without considering the circumstances asserted that the Defendants were to have been included in the bidding period in 199 and 207, ③ the average bid price in the Plaintiff’s electric power purchase contract in 2013 and 2014 on the average of 2013.48

B) On the other hand, in light of the following circumstances, Gap evidence Nos. 2, Eul evidence Nos. 1 through 8, 11, and 12, and the overall purport of the arguments as a result of the appraiser’s appraisal of this case, the appraiser of this case included the period of competition between 1999 and 207, while the period from 2012 to 2014 is deemed an appropriate analysis method for calculating the amount of damages by excluding the period of competition. Thus, the defendant’s above assertion should not be accepted.

(2) In the case of 199 and 2007, a bidding is not limited to once for the year 199 and 2007, but for the year 1999, a bidding has been conducted for the total of six items on 23 occasions in total. In the case of 2007, a bid was conducted for the total of seven items on 20 occasions.

③ The virtual competitive price refers to the virtual price that has been formed when all other market conditions in the same situation were excluded from the effect of collusion in the same situation during the period of collusion, not the virtual competitive price refers to the price which the relevant enterpriser would not be absolutely damaged, or the price which guarantees the minimum profit for the relevant enterpriser.

④ Moreover, evidence Nos. 1 through 6, 8, 11, and 12, which is the evidence submitted to prove that abnormal price competition occurred in 1999 and 2007, is merely a mere statement or a meeting report prepared voluntarily by the parties related to the Defendant, etc., and it is difficult to readily believe this is merely a mere statement or a meeting report prepared by them. In addition, the Defendants, etc. submitted the data by comparing the bid price and the fluctuation expenses awarded in the Plaintiff’s bid by participating in the Plaintiff’s purchase tender in 1999 and 2007 (Evidence No. 7 and 12) but it is difficult to believe the above data without any submission of the evidence and it is difficult to say that there was any abnormal price competition in 199 and 207, and there is no other evidence to prove otherwise.

⑤ Even if the bid price ratio for the year 199 and 2007 was sharply lower due to the lack of information immediately after the conclusion of collusion, as alleged by the Defendants, the bidding participants’ bidding in light of the structure, etc. of the bidding system is a normal situation where the bidding participants take into account their respective profitability, etc. in the bidding in light of the lack of information on the bidding price for the other bidding participants in light of the structure, etc. of the bidding system (the bidding participants’ bid price, etc. should be known in the event of collusion). Thus, the aforementioned reasons asserted by the Defendants cannot be excluded from the competition period of 199 and 207 solely based on the aforementioned reasons asserted by the Defendants.

④ At the time of appraisal by the instant appraiser in the first instance trial, the Defendants estimated the amount of damages by deeming only the period of competition from 2012 to 2011 as the appraiser did not have any data on the bid price ratio from 2014. However, since the data accumulated from 2012 to 2014, the Defendants asserted that the amount of damages should be estimated by including the period from 2012 to 2014 in the competitive period. At the request of the Defendants, the instant appraiser claimed that the amount of damages according to the bid price ratio calculated by deeming the period of competition from 2008 to 2014 as the competitive period, as alleged by the Defendants.

However, if one of the facts was recognized when different appraisal results exist in the same matter, it would be lawful unless it violates the empirical and logical rules (see Supreme Court Decision 2002Da30275, Sept. 24, 2002; Supreme Court Decision 2010Da6659, May 27, 2010, etc.). As seen earlier, the Fair Trade Commission, on the grounds of the instant agreement and implementation, issued a corrective order and a penalty surcharge payment order against the Defendants on May 4, 2012, the probability that the Defendants would bear civil liability for damages arising from the Defendants’ collaborative act is relatively higher than before 2011, and further, it is difficult to view the Plaintiff’s bid price from 200 years before and after the Plaintiff filed a lawsuit against the Defendants on Jan. 20, 2012 to 10 years before and after the bid bid bid bid price was calculated based on the 20-year estimate period’s bid bid bid price and the Defendants’ damages compensation amount before and after the bid bid bid was calculated based on the two-year period.

C. Limitation on the Defendants’ liability for damages

【Defendant’s argument】

The defendants asserts that the defendants' liability for damages should be significantly limited considering the following: (a) the defendants have led to collusion due to the plaintiff's unfair bid price which is the exclusive consumers; (b) the plaintiff transferred the price increase due to collusion to an electricity consumer who is the final consumer; (c) the plaintiff seems to have been aware of the defendants' collusion circumstances; and (d) the defendants suffered business difficulties due to deterioration of the business environment.

【Counterclaim by the Plaintiff】

As long as the Defendants intentionally committed collusion over a long-term period, limiting the Plaintiff’s amount of damages due to limitation of liability, etc. and holding the benefits illegally accrued to the Defendants as they are, from the perspective of fairness, it is entirely unreasonable from the perspective of fairness. In addition, it is reasonable to recognize the Plaintiff’s amount of damages as the scope of the Defendants’ liability without limitation of liability against the Defendants in terms of the Plaintiff’s amount of damages

[Judgment]

1) It is not allowed for a person who intentionally committed a tort by taking advantage of the victim’s negligence to claim to reduce his/her liability on the ground of the victim’s negligence. This is because, in cases where such intentional tort constitutes an acquisition act, recognition of the limitation of liability such as offsetting negligence would result in a result contrary to the principles of equity or good faith by having the perpetrator ultimately possess profits arising from the tort. Thus, even in cases of intentional tort, if such result does not result in the above, it is possible to limit liability based on the comparative negligence or the principle of equity (see Supreme Court Decision 2006Da16758, Oct. 25, 2007, etc.).

2) In light of the aforementioned premise and the following circumstances, it is reasonable to determine the amount to be compensated by the Defendants to 70% of the damages acknowledged earlier, in light of the ideology of the damage compensation system, i.e., fair and reasonable apportionment of damages, in light of the aforementioned premise and the statement of evidence No. 2, and the purport of the entire pleadings.

① In calculating the Plaintiff’s amount of damages, the method of presumption of the former and latter comparative law and the bid price rate adopted by an appraiser is merely a relative superior advantage compared to the method of calculating other damages, and it is not entirely reasonable, and the method of statistical presumption is intrinsically incomplete. In such a case, the court has no choice but to recognize a reasonable amount of damages based on the overall purport of pleadings and the result of examination of evidence (see Article

② In light of the empirical rule, there is a possibility that the Plaintiff transferred part of the damages incurred by the Defendants’ collusion to the electricity users through the electricity charge.

③ The Plaintiff changed its assertion that the Plaintiff’s total amount of damages should be recognized as the Defendants’ damages liability. However, the first instance court, on its own, limited the scope of the Defendants’ damages to 80% of the damages.

4. Conclusion

Therefore, the defendants jointly seek compensation from the plaintiff (84,909,021,00 won x 70%) and after the date of tort, it is clear that the plaintiff's claim is the next day after the copy of the complaint of this case last delivered to the defendants, as the plaintiff seeks, and it is reasonable to dispute over the existence or scope of the defendants' obligation to perform its obligations from February 15, 2012 to July 7, 2016 (TR CN/CV-W of 2003 out of the amount cited in the first instance trial). Thus, it is reasonable to view that there is a considerable reason to dispute over the purchase contract with the above court as to the above amount including the amount additionally quoted in this court until this court declares this court's judgment. Thus, it is reasonable to view that there is a duty to pay 5% per annum of the year from the day following the date stipulated in the Civil Act to the day of complete payment, and that there is a duty to pay 25% per annum of the total damages before this court's decision.

Therefore, the Plaintiff’s claim against the Defendants is justified within the scope of the above recognition, and all remaining claims against the Defendants are without merit. The part of the first instance judgment, which concluded otherwise, is unfair, and thus, it is modified as set forth in paragraph (1) of this Article.

[Attachment Omission]

Judges exhaustr fever (Presiding Judge)

1) There is a difference between scholars regarding classification and terms, but in this case, the classification and terms indicated in the appraiser’s appraisal document are to be followed in this case. ① The front and rear comparison method is to estimate an unfair price increase due to collusion by comparing a market where there was no collusion for the same market and the price at the time of the collusion for the same market; ② The comparison market method is to estimate an unfair price increase due to collusion by comparing a market where there was no collusion for the market and the price at the market where there was the collusion for the market. ③ The double allocation method is a mutually complementary method between the front and rear comparison market method and the comparison market method. ③ The double allocation method is a method to seek the difference of the price at the time when the collusion was committed in the collusion market and to calculate the difference by deducting the price at each time in the comparison market. ④ The method of estimating the cost and margin is to identify the producer’s cost (cost) and estimate the aggregate of the normal margin in the competition market.

2) The appraiser of the instant case failed to calculate the successful bid price due to the lack of data in the case of 1998, and, in classifying the non-conforming period of the instant case, it was divided into 1999 years between October 15, 1999 and December 199, the purchase contract entered into with the Plaintiff and the Defendant, etc. for convenience, and then after December 2007, the period was 2007.

심급 사건

-서울중앙지방법원 2015.1.23.선고 2012가합501962, 2014가합590706(독립당사자참가의소)

서울고등법원 2016.7.7.선고 2015나2015960

-대법원 2018.10.12.선고 2016다243115

원심판결

-서울중앙지방법원 2015. 1. 23. 선고 2012가합501962 판결

본문참조판례

-대법원 1992. 5. 26. 선고 91다4669, 4676 판결

-대법원 1992. 5. 26. 선고 91다4669,91다4676 판결

-대법원 2002. 9. 24. 선고 2002다30275 판결

-대법원 2007. 10. 25. 선고 2006다16758 판결

-대법원 2007. 2. 22. 선고 2004다70420, 70437 판결