Elmm Chemical Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Oi-seok et al., Counsel for the defendant-appellant)

Fair Trade Commission (Attorney Choi Byung-hee et al., Counsel for the defendant-appellant)

October 21, 2010

1. The plaintiff's claim is dismissed.

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

The defendant's decision that on April 8, 2010, the payment order of penalty surcharge stated in attached Form 1 issued by the decision No. 2010-42 against the plaintiff is revoked.

1. Circumstances and basic facts of the disposition;

The following facts may be acknowledged, either in dispute between the parties or in accordance with Gap evidence Nos. 1, 2, and Eul evidence Nos. 1 through 87 (including each number), by taking into account the whole purport of the pleadings.

A. Status and general status of the plaintiff

(1) The company established around April 3, 2001 as the company established around 1947 and continued to exist with ELC on April 3, 2001 (the base date of division is April 1). The petroleum chemical division and the industrial product division were divided into the Plaintiff; the company in charge of the petroleum product division and the cosmetics division were divided into the Plaintiff; the company in charge of the food product division and the cosmetic division was divided into the ELC health of ELB (hereinafter the company before division is divided into the Plaintiff; the company before division is referred to as the “former ELV chemical”; and the company is not divided into the Plaintiff and the Plaintiff is referred to as the

(2) The Plaintiff, Hanhwa Petroleum Chemical Co., Ltd., Samsung T&T, Samsung Heavy Heavy Chemical Co., Ltd., Samsungnam Petroleum Chemical Co., Ltd., Ltd., hereinafter “Plaintiff et al.”) and KS Co., Ltd. (hereinafter referred to as “Plaintiff et al.”) are omitted; however, all of the Plaintiff et al., “six companies, including S cases,” and “seven companies, including the Plaintiff et al.,” are business operators (hereinafter referred to as “gasry company”) who manufacture and sell synthetic resin, a kind of petrochemicals, and constitute business operators under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”).

(3) The general status of the plaintiff et al. seven companies is as follows:

Table 1> General status of Table 1>

As of December 31, 2004, units: Won, name

On April 27, 1974, 505,025,025 2,01, 1361, 271, 271, 316, 300, 171, 810, 365,420, 918 536,4209,80 Samsung Total 809,809, 75264, 364, 1468, 2216, 208, 364, 208, 364, 205, 364, 206, 305, 1964, 205, 207, 207, 364, 206, 305, 1964, 206, 305, 206, 306, 306, 1964, 1975, 195, 1975, 194

(b) The structure and actual status of the LDPE, LLDPE market structure;

(1) Summary

The petroleum chemical industry is an industry that manufactures basic raw materials, such as ethylene and propyren as raw materials, and intermediate raw materials, which is extracted from natural gas or crude oil, and manufactures final petroleum chemical products, such as synthetic resin, combined islands, synthetic rubber as raw materials.

PHE is divided into low-density ethylene (hereinafter referred to as “LDPE”), first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, first-class, second-class, second-class, second-class, second-class, second-class, second-class, second-class, second-class, and second-class, second-class (hereinafter referred to as “LDPE”). The first-class, second-class, first-class, second-class, second-class, second-class, and second-class, second-class, second-class, second-class, and second-class, second-class, second-class, and second-class, second-class, second-class, and second-class, second-class, second-class, and second-class, third-class, and second-class, second-class.

Table 2> Characteristics and uses by synthetic resin

PEDPE density and degree of determination contained in the main sentence are relatively low, and seal robbery is small, but the inner shockness is equal, films (agricultural, industrial) and pressure-generating clothes (fluoring packaging materials, tents, double paper, paper paper, paper World Cup) mainly used in the manufacture of 190 plastic products, and LLDPE decision degree, stiffing points, seals, intensity, and intensity are high in the interim nature, film (agricultural, industrial use, industrial use) density and degree of determination of HDPE and HDPE's mid-term nature, film (agricultural, industrial use), high in the capacity of seals, high in the size of seals ? The seal strength is mainly used in the manufacture of light plastic products / pipes / pipes / pipe / for paper-use/ paper-use / film / film for paper-use.

(2) Market share and market structure

From 2001 to 2005, the market share of the business operator's domestic sales in the TPP market is as follows:

Table 3> Market share by LDE Business 2)

(unit: 00,000 won, per cent)

The business entity classified in the main sentence shall be 163,148, 163, 371, 170, 717219, 786 228, 786 228, 47.64, 47.94. 42.82, 959,090 82,721,883,883 197,702. 2003. 2004, 2005 163. 37. 37. 37, 35, 3532, 861, 4242, 47. 8. 7. 8. 208, 201. 7. 8. 37. 1. 37. 237. 37. 37. 37. 35, 3532, 861, 242, 8. 108. 6.

From 2001 to 2005, the market share of the business operator's domestic sales in the LEL market shall be as follows:

Table 4> Market share by LLDPE business 3)

(unit: 00,000 won, per cent)

Table business operators classified in the main sentence: 2001 2002 2004 Mani Petroleum Chemical Sales Amounting to 84,072 83,0339,645 120,097 144,175 33.84,175 32.45 30.63,782 63,782 63,798 06.7 06.36.48 7.68 7.68 16.68 7.68 16.4,208 7.68 7.6.68 7.4,206.38 7.6.4,206. 8. 8. 7. 16. 8,206. 7. 39,505,205. 7. 15. 14. 27. 18

(iii)price and cost structure;

The price of petrochemicals is determined by the negotiating power with the producer's Mk-up 4) Pricing and demand. The cost of petrochemicals has the same cost factor except additives, etc.

(c) Formation of unfair collaborative acts;

From April 1994 to March 2005, as well as the Plaintiff, the UDR, including the Plaintiff, held a president's meeting, a president's meeting, a director's meeting, a director's meeting, or a business practice group, and jointly decided the prices of the PE and ELPE products (hereinafter referred to as the "instant collaborative act").

On April 28, 1994, the collaborative act of this case originated from the following agreements on the sales price of the DPE and the DPE products:

Table 5> Matters to be consulted on

1. Table 1. Industry reduction plan contained in the main sentence - Whether it will be submitted : NCC, HDPE, PP, Large Forest Industry (NCC, HDPE, PP), Honam Oil Chemical (PP), Samsung General Chemical (LDPE), Samsung Total Chemical (P Part): - The method of submitting a quarterly report to the Association within three days after the reduction of the price of - the annual report to adjust the production and sale price of - The annual price of - The annual report to the Association within 94 days before the end of the reduction of the - the annual report to adjust the production and sale price of - the annual report to the Association, and the detailed method of adjusting the production and sale of - the quarterly price of - the latest report to the Association within - The detailed method of adjusting the production and sale price of - the monthly report to the Association within 94 days after the reduction of the price of - the monthly report to adjust the production and sale price of - the monthly report to the Association; and the detailed method of adjusting the production and sale of -4.

After that, until March, 2005, the United Nations, including the Plaintiff, had a regular meeting of the above president and working group each month, and agreed on the breadth of the base price or the base price, and continued to reach an agreement by the method of implementation throughout all items. Specifically, the price was determined by the method of “the parties to the transaction of the following month base price (minimum price, high price) or the increase volume of the product, ? the parties to the transaction of the agreement ? check whether the agreement was implemented as agreed by the company ? the last end price agreement of the relevant month of the representative ? the end price agreement of the next month, and the second month base price of the product other than the subject to the agreement, taking into account the market structure, specialized level, map of the sales price of the product in question, etc. based on the agreed price of the product in question.

D. The defendant's previous decision

(1) From April 28, 1994 to April 30, 2005, the Defendant: (a) deemed that six companies including the Plaintiff, etc. agreed on and implemented the selling price of LPE with the instant collaborative act; and (b) concluded that it falls under Article 19(1)1 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004; hereinafter “former Monopoly Regulation and Fair Trade Act”); (c) on March 5, 2008, the Defendant decided on March 208 with the corrective order of KRW 9,818,000,000 (limited to KRW 8,837,000,000, and KRW 981,000,000 (hereinafter “former Fair Trade Act”).

(2) In the previous decision, the Defendant calculated the penalty surcharge against the Plaintiff as follows.

(A) Determination of whether to impose a penalty surcharge

A penalty surcharge shall be imposed by applying Articles 22 and 55-3 of the former Fair Trade Act, Article 61 of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 18768, Mar. 31, 2005; hereinafter “former Enforcement Decree of the Fair Trade Act”), and the former detailed criteria, etc. for imposing penalty surcharges (amended by the Fair Trade Commission Notice No. 2005-3, Apr. 1, 2005; hereinafter “former imposition of penalty surcharges”) inasmuch as the Plaintiff continues to engage in an unfair collaborative act for a long time, the Plaintiff’s market power in the relevant market is large, and the overall impact of the national economy including the electricity-control industry is not significant.

(b) Basic penalty surcharges;

1) Calculation of the relevant sales amount

Considering the business methods, pricing methods and cost structure, supplementation and substitution between products, relationship with the customer, price trends of the products, and agreed methods and details in the LDPE market, the products concerned are all affected directly or indirectly by the instant collaborative act. Thus, the products concerned are all products before LDPE and LDPE.

The time of violation of the Act shall be April 28, 1994 when the first price agreement was reached, and the termination date of the violation of the Act shall be deemed to be April 30, 2005, since the conference reached an agreement from March 2005 to the standard price for sale on April 2005.

Accordingly, when calculating the sales related to this, the LDPE sector is KRW 901,691,00,000 (from April 28, 1994 to April 30, 2005) and the LDPE sector is KRW 100,209,000 (from October 1, 2003 to April 30, 2005).

2) Calculation of basic penalty surcharges

The Plaintiff’s act constitutes a very serious violation. In light of the fact that the instant collaborative act was partially attributable to the increase in the price of crude oil, naphtha, etc., which is the main raw material of synthetic resin, and that most of the offenses committed before the enforcement of the former penalty surcharge imposition notice, it is calculated by applying the imposition standard rate of 3.5% of the relevant sales. If the amount of basic penalty surcharge is calculated by applying the imposition standard rate of 31,559,100,000 won in the LPE division, and the LLPE division is 3,507,300,000 won in the LPE division.

(C) Mandatory co-ordination penalties;

The plaintiff's act of violation of law does not constitute grounds for compulsory adjustment, and thus, the mandatory adjustment penalty is the same as the basic penalty surcharge.

(d) Voluntary adjustment penalty surcharges;

Since the plaintiff discontinued the violation before the commencement report of the investigation by the defendant and voluntarily corrected the violation, 20% of the mandatory adjustment penalty shall be reduced.

(e) Determination of a penalty surcharge;

In consideration of the fact that the petroleum chemical industry was demination, the administrative guidance affected the collaborative act of this case, and the fact that LDPE or LLDPE did not take a higher portion in the petroleum chemical industry, and the ripple effect of the violation of synthetic resin is weak than other synthetic resin products, 30% of the discretionary adjustment penalty surcharge shall be reduced.

(f)Reduction and exemption for investigators and co-offenders;

In a situation where the Defendant did not secure sufficient evidence on the collaborative act of this case, it was secured sufficient evidence to prove illegality through the investigation cooperation of Honam Petroleum chemical, but the Plaintiff also submitted sufficient evidence, evidence and statement secured by the Defendant, and cooperate until the investigation is completed, supporting the evidence and statement submitted by Honam Petroleum chemical. The Plaintiff falls under an investigator for investigation under Article 22-2 (1) 2 of the former Enforcement Decree of the Fair Trade Act, and thus, the penalty surcharge shall be reduced by 49.9% by applying Article 35 (2) 3 of the former Enforcement Decree of the Fair Trade Act.

(G) Details of penalty surcharge calculation against the Plaintiff are as follows: <6>

Table 6> Details of calculation of penalty against the plaintiff

(unit: per cent, per million won)

The rate of imposition of basic adjusted penalty surcharges on the table classification included in the main sentence shall be the final rate of reduction of penalty surcharges on the reduction of the amount of penalty surcharges on the basis of voluntary adjusted reduction rate of penalty surcharges on the table classification 901, 691, 91, 31, 559.131, 559.20 25,247 30 17, 672 49.9 8, 837 LLPE 100, 209 3.53, 507.33, 507.3202, 805 301, 9639.981

E. Progress of revocation suit

The plaintiff filed a lawsuit against the defendant to revoke the corrective order and penalty surcharge payment order pursuant to the above resolution, Seoul High Court No. 2008Nu23988, and the above court revoked the payment order in full on August 27, 2009 on the ground that "the plaintiff was a newly incorporated company on April 3, 2001 by dividing the petroleum chemical business division and the industrial goods business division, and it is not allowed to impose a penalty surcharge on the plaintiff who is a newly incorporated company on the ground that the unfair collaborative act before the division of the company that was divided into the company that was divided into the newly incorporated company, and thus, it is illegal to impose a penalty surcharge on the plaintiff for the period from April 28, 1994 to April 2, 2001." The above court dismissed the above judgment by the defendant's final appeal on December 10, 2009.

(f)re-disposition in accordance with a final judgment;

On April 8, 2010, pursuant to the purport of the aforementioned final judgment by a resolution against the Plaintiff, the Defendant issued an order to pay a penalty surcharge in attached Form 1 by re-calculationing the Plaintiff’s sales during the period from April 28, 1994 to April 2, 2001, except the sales during the period from April 3, 2001 to April 30, 2005 (On the other hand, since the Plaintiff began to sell the LLPE from October 1, 203, which was after the company was divided, as the result of the previous decision), under the following:

Table 7> Details of the re-determination of penalty surcharge

(unit: million won)

LPE 901,691, 465,353 LPE 100,209, 100, 209 base rate of 3.5% 3.5% of the base rate of 3.5% 3.5% of the base of DPE 31,559,287 LPE 3,507 3,507 voluntary adjustment penalty surcharges (20% mitigation) 25,247 13,029 LPE 2,805 2,8052,805 (30%) LPE 17,6729, 120 LPE 120, 9631, 963 final penalty surcharges (49.99), 84,581, 985, 9681, 963

2. Summary of the plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful on the following grounds.

A. The assertion that the prescription period for the disposal of part of the collaborative act has expired

In light of the fact that genetic companies, including the Plaintiff, hold a meeting from April 28, 1994 to April 30, 2005, and reached an agreement on the selling prices of LDPE and LDPE on several occasions. However, there is no basic agreement that the act performed for a long time exceeding 11 years is deemed a single act, and the structure and character of the petrochemicals market, including LDPE and LDPE products, and the structure and nature of the petrochemicals market, participants, supply conditions, etc. during the above period, can not be deemed a single act committed with the same intent and with the same purpose. Accordingly, the instant collaborative act should be deemed an individual act, not a single act, but a penalty surcharge for the part for which the exclusion period of five years under Article 49(4) of the Fair Trade Act has already lapsed.

B. The assertion that the calculation of the relevant sales was erroneous

(1) The claim that the consignment sales portion shall be calculated as the consignment sales commission, not the sales proceeds.

From October 1, 2003 to December 31, 2004, the Plaintiff entered into a sales agency contract with modern petroleum chemistry, and entered into a sales agency contract with EL area oil, and made sales agency contract between EL area oil and EL area oil, and made sales agency with EL area oil from January 1, 2005 to January 1, 2006. Hyundai petroleum chemistry and EL area oil were entered into the sales agency contract with the above sales agency, and the Plaintiff entered into the sales agency contract with 3% of the sales commission, and the Plaintiff entered into the sales commission with the commission commission, and the Plaintiff entered into the sales agency contract with the above company. The relevant sales amount under the Fair Trade Act means only the sales amount belonging to the relevant business operator, which is not the sales amount of the products, but the sales amount belonging to the Plaintiff, which is not the sales amount of the products directly related to the sales, and the Defendant shall be limited to the sales commission, which is not the sales amount of the products.

(2) The assertion of exclusion from special standardized products

The collaborative act of this case is merely a price agreement for representative specifications among LDPE and LDPE products. Among the products manufactured and sold by the plaintiff, special specifications products without possibility of substitution with other products, such as exclusive manufacture and sale, are not subject to the collaborative act of this case, and their price was determined by individual agreement with the specific business partners. Accordingly, special specifications products manufactured and sold by the plaintiff (LDPE: LB7500, LB72000, LB2030, CB930, MB9300, LLDPE: SF308, ST308, ST408, and ST508) are not affected by the collaborative act of this case, so the sales amount should be excluded from the relevant sales amount.

(3) Claim to exclude defective products

Since it is impossible to uniformly determine the price due to a variety of inferior products, the price of which is below the quality standard and the degree of the inferior products is different, the price is determined according to the individual agreement between the parties to the transaction, so the price shall be excluded from the related sales.

C. Claim that there was an error that did not recognize the Plaintiff’s status as the first voluntary reporter during the period prior to October 1, 2003, which was not subject to voluntary report of Honam Petroleum Chemical,

On June 26, 2003, Honam Petroleum chemical, the first reporter of the collaborative act of this case, together with the Plaintiff on June 26, 2003, sold the above products under entrustment from old modern petroleum chemical from October 1, 2003. Thus, the voluntary declaration of Honam Petroleum chemical is limited to the collaborative act after October 1, 2003. However, even before acquiring the old Hyundai Petroleum chemical, the Plaintiff submitted the first voluntary declaration to the Plaintiff on June 26, 2003 and actively cooperate with the Plaintiff on the investigation of the entire portion of 10 years prior to the date of 3 years prior to the date of 10 years prior to the acquisition of the old Hyundai Petroleum chemical, which is the first report of 10 years prior to the date of 10 years prior to the date of 20 years prior to the date of 20 years prior to the date of 3 years prior to the date of 20 years prior to the date of 3 years prior to the date of 20 years prior to the submission of the evidence.

D. Grounds for deviation from and abuse of discretionary power to calculate penalty surcharges

(1) The plaintiff's act does not constitute "a serious violation"

The plaintiff et al. did not comply with the standard price in fact, including the plaintiff, even though they agreed on the price of the standardized product, and they did not comply with the standard price widely by individual negotiations against individual customers, and since the supply exceeds the supply price, the plaintiff et al. could not accept the strong negotiation demand for the price discount of large buyers. Therefore, the above price agreement cannot be effective from the beginning to the end of 1994, and there was no unjust enrichment acquired by the plaintiff due to the instant collaborative act until 2004. Considering this point, since the competition-restricting effect of the instant collaborative act is very low, it should be deemed that the instant collaborative act is a "serious violation" or "serious violation", the defendant applied the higher rate of penalty surcharge by considering the above "serious violation" differently.

(2) The assertion that it is improper to impose a penalty surcharge on the Plaintiff who already received a large amount of penalty surcharge due to an unfair collaborative act in the similar product market.

The Plaintiff had already been subject to heavy penalty surcharges due to the detection of unfair collaborative acts in the HDPE and the PP product market, which can be seen as a matter of fact identical to the instant collaborative act. The Plaintiff was subject to double penalty surcharges due to the instant collaborative act. This is excessively excessive and unfair in light of the purpose of imposing penalty surcharges to recover unjust enrichment and punish illegal acts.

3. Relevant statutes;

Attached Table 2-Related Acts and subordinate statutes

4. Determination

(a) Whether the prescription period for disposition on part of the collaborative act has expired;

(1) In the event that business entities have reached an agreement on the basic principles of unfair collaborative acts and have reached several agreements in the process of implementing such agreement, and even if they have reached several agreements over a long time without the agreement on such basic principles, if each agreement has been implemented for the same purpose on the basis of a single intent and has been continuously implemented without being cut off, it is reasonable to deem that the agreement has been partially changed in the specific contents or members of each agreement as a whole, barring special circumstances (see Supreme Court Decision 2008Du16179, Jan. 30, 2009).

(2) On October 2, 193, the following circumstances, which can be seen by comprehensively taking into account the purpose of arguments as to this case’s health class, Gap evidence No. 1, Eul evidence No. 1, and Eul evidence No. 11 through 63, the companies including the plaintiff et al., have agreed to determine the price of the above items in consideration of the market condition and maintain it in order to obtain approval of collaborative acts against polyethyl and polypropye, and other specifications have not been approved. The companies including the plaintiff et al. agreed to determine and sell above prices in light of the characteristics of different specifications. The companies including the plaintiff et al. were not authorized, and the companies including the plaintiff et al. agreed to allocate the domestic sales volume of each company to the 9th president meeting and to establish a plan for price adjustment for each of the following reasons: the companies’ price adjustment by adopting the following methods: the companies’ price adjustment method or price adjustment by 10th of March 24, 1994.

(3) As seen above, the instant collaborative act should be deemed to be a single unfair collaborative act, and on different premise, the Plaintiff’s assertion that the statute of limitations for part of the collaborative act has already expired is rejected.

B. Whether the calculation of the relevant sales was erroneous

(1) A consignment sale section

(A) Facts recognized

According to Gap evidence Nos. 3 through 7 and Eul evidence Nos. 65 through 70, after acquiring 50% of the shares of old Hyundai Petroleum Chemical on Jan. 30, 2003, the plaintiff and Honam Petroleum Chemical concluded a joint operation contract on Jun. 26, 2003 and concluded a joint operation contract on Jun. 26, 2003 to manage each part of the business to be divided, and divided the sales and sales organization of old Hyundai Petroleum Chemical. The plaintiff and Honam Petroleum Chemical Co., Ltd. concluded a joint operation contract with old Hyundai Petroleum Chemical Co., Ltd. to execute sales and sales agency contracts with the plaintiff under the joint operation system, respectively. The plaintiff and Honam Petroleum Chemical Co., Ltd. concluded a sales agency contract with the 10th of Hyundai Petroleum Chemical Co., Ltd. to the 10th of Hyundai Petroleum Chemical Co., Ltd. to the 2016th of Hyundai Oil Site Co., Ltd. to the 2016th of Hyundai Petroleum Co., Ltd.

(B) Determination

In light of the above, the sales amount of the pertinent product is calculated based on accounting data when calculating the pertinent sales amount. However, if it is unreasonable to regard the sales amount from accounting data as related sales amount, it can be determined differently (Article 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act, and guidelines III. 1.c. of the Operational Guidelines on Calculation of Related Sales and Determination of Seriousity of Violations at the time of imposing a penalty surcharge, the pertinent sales amount in the instant collaborative act is not the sales amount of the pertinent product, but the pertinent sales amount in the instant case are not the sales amount of the pertinent product. The Plaintiff’s sales amount in the instant collaborative act is not the sales amount of the pertinent product, but the Plaintiff’s sales amount in the instant case, which is the goods related to the instant collaborative act, but the Plaintiff’s sales amount in the instant case, is not the sales amount of the pertinent product, but the Plaintiff’s sales amount is not different from the Plaintiff’s sales amount in the instant case of the instant case of the instant unfair collaborative act. However, the Plaintiff’s sales amount is limited to the Plaintiff’s sales amount related to the sales amount.

(2) Parts of special standardized products

(A) In the event of price collusion, damage occurs to consumers due to increase in the price of goods above the competitive price due to the collusion, the related goods subject to price collusion shall be deemed to include all goods directly or indirectly affected by price collusion. On the other hand, the former Enforcement Decree of the Fair Trade Act, which applies to the collaborative act of this case, provides that "the scope of related sales calculated shall be determined by considering the type and nature of the goods directly or indirectly affected by the relevant collaborative act, the transaction area, transaction partner, transaction stage, etc., and the period of violation shall be the period from the date of commencement of the relevant act to the date of ending on the date of the violation, and the sales shall be determined by referring to the financial data, etc. of the enterpriser, but the scope of each act shall be determined individually and specifically by the type of the act, and in Section II.5 (b) of the former Enforcement Decree of the Penalty Surcharge."

(B) LDPE or LDPE products are classified into multi-use products and special-purpose products. The former is a product that has multiple specifications for each type of flexible company because of the generalization of manufacturing technology and the lack of quality difference. The latter refers to a product that actively causes price competition, such as holding other emulatories by each size, and the latter refers to a product that is relatively small in the market size and differentiated from other products. In this case, the issue is whether only a specific company alone manufactures and sells products, which are used for special purposes by a specific supplier or a specific supplier, including sales of the products related to the specific product, is whether the specific product is included in relevant sales. The relevant evidence reveals that there is no possibility of substitution with other products, and if the product is found to be completely differentiated from the product subject to unfair collaborative act, the relevant sales amount is excluded from related sales, and if the enterpriser seems to have reached an agreement on the price of the product at issue, even if there is no possibility of discrimination between the specific company and the other products, it still includes an agreement on the price of the product at issue.

(다) 이렇게 볼 때, 앞서 채택한 증거에 변론 전체의 취지를 종합하여 알 수 있는 사정 즉, ㉮ LDPE와 LLDPE은 HDPE에 비해 밀도와 결정도 및 인장강도가 비교적 낮으나 내충격성은 크게 나타나(LLDPE은 LDPE와 HDPE의 중간 정도) 주로 농업이나 공업용 필름 등의 제조에 주로 사용되며 상당수의 개별 제품들은 상호 보완재 관계에 있는 점, ㉯ 이 사건 공동행위는 유화사가 제조·판매하는 각 제품별, 용도별로 다양한 규격에 대해 대표 규격에 대한 가격을 정한 후 이를 기준으로 개별 규격의 생산원가, 인지도, 제품의 특화정도, 할인율 등을 감안하여 해당제품의 가격을 결정하는 방식으로 이루어진 점(이에 대하여 호남석유화학은 가격결정에 대하여 작성된 문건에서 “통상적으로 제품별로 협의가격의 논의대상은 범용제품임. 그 외의 특수규격에 대해서는 각 유화사별 산정기준에 따라서 자체적으로 결정하나, 범용규격에다가 특수규격에 따른 추가원가를 반영하여 결정함“이라고 확인하고 있는데, 원고를 비롯한 다른 유화사들의 경우에도 이와 마찬가지라고 보인다), ㉰ 위와 같이 이 사건 공동행위가 가격 변동 폭 또는 최저가격에 대한 합의방식으로 이루어진 이상, 단순히 범용제품뿐 아니라 어느 정도 차별화된 제품을 포함한 모든 제품이 가격 담합의 영향 하에 가격 인상이 이루어질 수 있도록 진행되었고, 실제로 기준가격(그레이드를 특정함이 없이 LDPE와 LLDPE의 전체 가격변동에 합대하여 합의한 경우도 있다)에 합의한 후 그 가격 변동이 전체 제품의 가격 변동 폭에 영향을 미치도록 실행된 점, ㉱ 원고를 비롯한 유화사들은 위 1994. 4. 28. 가격 담합 이전에 체결한 1993. 10. 12.자 합의서에서, “품목별로 범용규격의 국내 판매가격은 시황을 감안하여 결정하고 동 가격을 유지함. 다만, 여타 규격은 규격별 특성을 감안하여 범용규격의 가격이상으로 결정·판매함”이라고 정한 점, ㉲ 을 제74 내지 83호증(각 가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면, LB7500 제품의 경우 국제가격에 일정금액을 가산하여 가격이 결정되는 이른바 formula 방식을 취하고 있는데, 이는 기초원료나 수지제품의 국제가에 연동되므로 이 사건 공동행위와 같이 대표 규격에 대한 기준가격의 결정과 실질적으로 동일한 과정을 거쳐 정해지는 사실, 다른 유화사들이 제출한 각사별 대응그레이드 표에 의하면, LB7500, MB9300, SF308, ST308, ST408, ST508 제품의 경우 이에 대응하는 다른 유화사의 경쟁 제품이 존재하는 사실, LB7500, CB2030, ST308, ST508 제품의 경우에는 원고가 거래하였다고 주장하는 업체 이외에도 여러 수요처에 공급해 온 사실을 인정할 수 있는 점, ㉳ 원고는, LB7500, PL2000S, CB2030, MB9300, SF308, ST308, ST408, ST508 제품은 원고가 단독 또는 수요처와 공동 개발하여 독점적으로 공급하는 제품으로 다른 유화사들이 제조하는 제품과는 제품의 특성·용도를 달리하는 차별화된 제품이라고 주장하나, 갑 제8 내지 17호증, 갑 제28호증의 각 기재만으로는 위 제품들이 원고만이 단독으로 제조·판매하는 제품으로서 수요처와의 계약에 따라 독자적으로 가격이 결정되는 완전하게 차별화된 제품이라는 점을 인정하기에 부족하고 달리 이를 인정할 증거가 없는 점 등의 사정에 비추어 볼 때, 원고가 제조·판매한 LB7500, PL2000S, CB2030, MB9300, SF308, ST308, ST408, ST508 제품은 이 사건 공동행위로 인하여 직접 또는 간접적으로 영향을 받았다고 할 수밖에 없다고 할 것이므로, 이와 다른 전제에 선 원고의 주장은 이유 없다.

(3) Defective parts

The defective goods can be calculated at any time at the time in the manufacturing process of the petrochemicals that produces a variety of products with the same raw materials. Thus, in a case where the quality of the defective goods can be used as a substitute product for the goods with the high quality demand rather than the normal goods, the goods can be sold at a lower price than the ordinary goods. Thus, even if it is difficult to freely determine the price compared with the normal goods, the transaction price should still be determined in accordance with the market demand and supply rules. Therefore, the collaborative act of this case directly and indirectly affected the price of the defective goods, and thus, it cannot be said that there is any error of law including sales.

C. Whether the Plaintiff’s status of the first voluntary reporter should be recognized for the period prior to October 1, 2003

(1) Article 22-2 of the former Monopoly Regulation and Fair Trade Act provides that a penalty surcharge may be reduced or exempted for a person who has reported an unfair collaborative act, a person who has cooperated in an investigation into an unfair collaborative act by providing evidence, etc., and that matters necessary for the scope of reduction or exemption of a penalty surcharge and the standard and degree thereof shall be prescribed by Presidential Decree. Accordingly, Article 35 of the former Enforcement Decree of the Fair Trade Act provides for reduction or exemption of a penalty surcharge: (i) where the Fair Trade Commission has reported and provided evidence necessary to substantiate an unfair collaborative act in a situation where the Fair Trade Commission did not obtain information on the relevant unfair collaborative act or obtained information while it did not obtain sufficient evidence; (ii) where the Fair Trade Commission first reported and provided evidence necessary to substantiate an unfair collaborative act in a situation where it fails to secure sufficient evidence on the relevant unfair collaborative act, a penalty surcharge shall be reduced by 75/100 or more (Article 22(2)2 of the same Act); and (iii) where the Fair Trade Commission has provided evidence necessary to report or prove an unfair collaborative act, it shall be reduced by less than 50/10.

(2) According to the above relevant provisions, in order to be recognized as the first voluntary report pursuant to Article 35(2)2 of the former Enforcement Decree of the Fair Trade Act, “The Fair Trade Commission first provided evidence necessary to prove the collaborative act in the situation where sufficient evidence for the pertinent unfair collaborative act was not secured.” However, in this case, prior to the plaintiff in this case, Honam Petroleum chemical was deemed to have voluntarily reported the collaborative act of this case in the first order, and was reduced by 100% of the penalty surcharge imposed pursuant to Article 35(2)2 of the former Enforcement Decree of the Fair Trade Act. In this case, it is deemed as seen earlier, prior to October 1, 2003, whether Honam Petroleum chemical could have first reported the collaborative act in the LPE market prior to the plaintiff's participation in the unfair collaborative act.

(3) Considering that the instant collaborative act aims at achieving the same purpose based on a single intention, so long as the Plaintiff’s collaborative act was performed for the first time without being cut off, the entire act is acknowledged as one order for the first time. Unlike this, the first time for all collaborative acts does not necessarily have to provide evidence for the period of collusion. Even if the first time for collusion is not long compared to the entire collaborative period, there are no different grounds for the first time for the first time for voluntary report to be recognized as different voluntary report status by classifying one unfair collaborative act into several parts in the Enforcement Decree of the Monopoly Regulation and Fair Trade Act or the Enforcement Decree of the same Act, and the conclusion that the Plaintiff’s voluntary report should not be accepted for the first time after 0 years for the first time for the first time for the submission of 40 years for the first time for the voluntary report to the Plaintiff’s voluntary report to the effect that it is difficult to recognize the first time for 15 years for the first time for the submission of 4 years for voluntary report to the Plaintiff, as well as for 10 years for the first time for the submission of 4 years for voluntary report.

D. Whether there is a deviation or abuse of discretionary power in the calculation process of penalty surcharges

(1) Whether the Plaintiff’s act constitutes “a serious violation”

The gravity of the violation in relation to the unfair collaborative act is to determine the effect of the violation in question, such as the content of the violation, the market share of the enterpriser participating in the collaborative act, and the ripple effect of the act, focusing on the market competition. Thus, the collaborative act in this case constitutes price collusion under Article 19 (1) 1 of the Fair Trade Act, the total market share of the company, including the plaintiff, is up to 100%, the effect of restricting competition has occurred due to the execution of the collaborative act in this case, such as the increase in the sale price of LDPE and LDPE products, and there is a lack of evidence to recognize that the degree of restricting competition caused by the collaborative act in each of subparagraphs 20 through 22 of the above Article is low, and there is no other evidence to recognize it. In light of the above, the collaborative act in this case constitutes "any other serious violation" as stipulated in the previous public notice of imposing the penalty surcharge, and the defendant has applied the lowest rate of 3.5% of the base price due to the increase in the raw material price.

(2) The assertion that it is improper to impose a new penalty surcharge on the plaintiff who had already been imposed a large amount of penalty due to an unfair collaborative act in the similar product market.

Even if the Plaintiff was imposed a penalty surcharge due to the detection of unfair collaborative acts in the HDPE and the PP product markets, it cannot be deemed that the aforementioned products and the DPE products, which are the subject of the instant collaborative act, are separate products, are subject to the second penalty surcharge in regard to the same issue, and it cannot be said that the instant penalty surcharge was imposed on the Plaintiff on the grounds that there are such circumstances.

E. Sub-decision

Ultimately, the instant disposition was made lawfully.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judge Lee Ji-hun (Presiding Judge)

1) Polylyfin is also classified into polyethylene (Polyethne, PE), polypropyne (PP), polypropyne (PP), polystyren (PS), polyvin vinyl (PVC), ABS (ABS), etc.

2) During the period from October 1, 2003 to December 31, 2003, the sales for three months from October 1, 2003 to December 31, 2003 were included in the sales for convenience, and the market share of Samsung General Chemical and Samsung C&T was added to Samsung General Chemical. Meanwhile, Honam Petroleum Chemical was started to sell Hyundai Petroleum as an agent until October 1, 2003.

3) During the period of selling modern petroleum chemical products by proxy between the Plaintiff and Honam Petroleum chemical ( October 1, 2003 and December 31, 2004) the sales for three months from October 1, 2003 to December 31, 2003 included the sales for convenience, and the market share of Samsung General Chemical and Samsung C&T was added to Samsung General Chemical. Meanwhile, the Plaintiff and Honam Petroleum chemical did not manufacture and sell LLDPE products until October 1, 2003, which began to sell modern petroleum chemical products by proxy.

4) Mark-up means a price-fixing method in which an entrepreneur determines a selling price by adding a certain profit ratio to the per unit production cost of the product.