[1] The legal nature of imposing penalty surcharges on a violator of the Fair Trade Commission's Monopoly Regulation and Fair Trade Act

[2] Whether the Fair Trade Commission should take into account the criteria under the "Guidelines for Calculation and Imposition of Penalty Surcharges", which is an internal business practice rule in calculating the amount of penalty surcharges (affirmative)

[3] The case holding that the above order to pay penalty surcharge is in violation of the principle of proportionality and it is abused or abused discretion where the Fair Trade Commission imposes a penalty surcharge in a lump sum on the grounds that the violation of the former Monopoly Regulation and Fair Trade Act is highly restricted.

[1] In full view of each provision of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999), the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge on a violation of the same Act, and if a penalty surcharge is imposed, the amount of penalty surcharge imposed on a violator of the same Act shall be set within a certain scope. Thus, the Fair Trade Commission's imposition of a penalty surcharge on the violator of the same Act shall be discretionary act.

[2] Article 55-3 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) provides that when imposing a penalty surcharge under the same Act, the Fair Trade Commission shall take into account the contents and degree of the violation, ② the duration and frequency of the violation, ③ the size of profits acquired from the violation, etc., and paragraph (3) of the same Article provides that matters necessary for imposing a penalty surcharge shall be prescribed by Presidential Decree. However, the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 1999) does not provide that the Fair Trade Commission shall establish and implement the "Guidelines for Imposition and Imposition of Penalty Surcharges" (hereinafter referred to as the "Guidelines") for the purpose of calculating the specific amount of a penalty surcharge imposed under the same Act. Thus, even if the above guidelines were established by the Fair Trade Commission, in light of the fact that it was established to establish proper criteria for selection of a penalty surcharge within the limits of the amount prescribed by the same Act, it should be determined as unlawful or reasonable grounds for violation of discretion.

[3] Where a violation of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999) of the Certified Architect is imposed uniformly as a penalty surcharge an amount equivalent to twice the standard of imposition of penalty surcharge under the "Guidelines for Imposition of Penalty Surcharges" established by the Fair Trade Commission on the grounds that the violation of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999) has a large competition limitation, the case holding that the above order of payment of penalty surcharge violates the principle of proportionality and it deviates from and abused discretion on the ground

[1] Articles 6, 17, 22, 24-2, 28, 31-2, 34-3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 1999); Article 27 of the Administrative Litigation Act / [2] Article 55-3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 1999); Article 9 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621, Mar. 31, 199); Article 27 of the Administrative Litigation Act / [3] Article 19 (1) 3, 7, Article 26 (1) 1, Article 37 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 199); Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2000Du6206 decided Feb. 9, 2001 (Gong2001Sang, 654) Supreme Court Decision 2000Du6121 decided May 28, 2002 (Gong2002Ha, 1553)

Korea Certified Architects Association and 12 others (Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Kim & Lee, Attorneys Dog-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Nu12620 delivered on January 27, 2000

All appeals are dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. In full view of the provisions of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 1999; hereinafter referred to as the "Act"), the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge for a violation of the Act or if a penalty surcharge is imposed, the amount of a penalty surcharge should be determined within a certain scope. Thus, the Fair Trade Commission's imposition of a penalty surcharge for a violator of the Act is a discretionary act. On the other hand, Article 55-3 (1) of the Act provides that the Fair Trade Commission shall take into account the contents and degree of the violation, ② the period and frequency of the violation, and ③ the size of profits acquired from the violation. However, it is unlawful to determine the amount of a penalty surcharge imposed within a reasonable scope of guidelines for the imposition of a penalty surcharge under the Act or guidelines for the imposition of a penalty surcharge under the Act (amended by Presidential Decree No. 1216, etc. of the Act).

2. According to the reasoning of the judgment below, the court below determined that the act of the plaintiffs' voluntary organization established by its branch offices of the Certified Architects Association of Special Corporation established under Article 31 of the Certified Architects Act for the purpose of supporting their friendship and light surveys and promoting the welfare of its members, which is an act of establishing a joint supervision office or supervision company, etc. while separately carrying out design duties and supervision, constitutes "an act of restricting the production, release, transportation or transaction of goods or establishing companies, etc. for the purpose of jointly conducting or managing major sectors of business" under Article 19 (1) 3 of the Act and "an act of establishing companies, etc. for the purpose of jointly conducting or managing the major sectors of business" under Article 26 (1) 1 of the Act which is not a violation of the above guidelines for imposing penalty surcharge of 0 billion won on the plaintiffs' association, which is a violation of the above guidelines for imposing penalty surcharge of 200 million won or more for each of the above violation of the guidelines for imposing the fine of 100 million won or more for the above violation of law.

3. According to the reasoning of the judgment below and the record, where the above guidelines are merely a single standard for imposing penalty surcharges under the above guidelines, and it is acknowledged that the above guidelines are not strictly binding and penalty surcharges are imposed, and the defendant also has a significant degree of restriction on competition of the plaintiffs' act on the grounds that the amount equivalent to twice the guidelines for imposing penalty surcharges under the above guidelines is imposed as penalty surcharges. However, according to the records other than the above reasons for determining the payment order of the penalty surcharges as deviation from and abuse of discretionary power, the court below did not force the plaintiffs to participate in the joint supervision office, etc., and there is an area where the actual participation ratio of the plaintiffs is not high, and there is an area where the number of certified architects who did not participate in the joint supervision office, etc. is higher than the one who participated in the joint supervision office, etc., and the above guidelines for imposing penalty surcharges is not sufficient to allow the uniform imposition of penalty surcharges equivalent to two times the amount of penalty surcharges under the above guidelines. Thus, in light of the above legal principles, the court below's conclusion is acceptable.

The ground of appeal cannot be accepted.

4. Therefore, all appeals are 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 Lee Jin-hun (Presiding Justice)