2015 Pence 1471
Cases of unfair collaborative acts by five enterprisers related to tendering for the purchase of train train for South-west high-speed railroads
Written resolution - train control cable.hwp
Written resolution - train control cable.pdf
1. Aion cable stock company;
군포시 엘에스로45번길 120 대표이사 김ㅇㅇ
Law Firm Gyeong-woo, Attorney
Attorney Cho Gi, Kim U.S., and Hongk
2. Power cable ship company;
충북 진천군 초평면 용정길 29-23 대표이사 강ㅇㅇ
Attorney Kim Jong-soo et al., Counsel for the legal office
3. Reserve cable stock company.
충남 예산군 고덕면 호음덕령길 92 대표이사 서ㅇㅇ, 김**
Law Firm Barun
Attorney Park Yong-soo, Attorney Park Jong-soo, and Successor
4. Electric Cable Co., Ltd.
During Ansan-si, 180, 25th and 28th representative director's lecture per the citizen of the Gu.
5. Electric Power Co., Ltd.
화성시 만년로 905-17 대표이사 허ㅇㅇ, 김## 대리인 법무법인 율촌
Attorney Park Jong-sik, Counsel for the plaintiff-appellant-ho
June 19, 2015
1. The cores shall not resume any act of unfairly restricting competition in the train control tender market in such a way as to agree in advance on the successful bidders, bid price and the distribution of successful bid volume while participating in bid for train control cable purchase ordered by the Korea Rail Network Authority;
2. The persons under question shall pay the penalty surcharge to the National Treasury in accordance with the following subparagraphs:
(a) Aion cable stock company: 447,000,000 won;
2) Powerte Cable Stock Company: 447,000,000 won;
3) Reserve cable Co., Ltd.: 895,000,000 won
(iv) Electric Cable Corporation: 179,000,000 won
(e) Electric Co., Ltd.: 563,000,000 won;
(b) Payment deadline: Within the payment deadline (60 days) specified in the notice for payment of penalty surcharges;
(c) Ministry of Tax Payment: Bank of Korea National Treasury receipt agencies or post offices; and
1. Basic facts
(a) Status and general status of the inquiree;
The first instance judgment, the first instance judgment, the second instance judgment, the first instance judgment, the first instance judgment, the electric wire company, the second instance judgment, the second instance judgment, the second instance judgment, the second instance judgment, and the second instance judgment, all are the enterprisers engaged in the manufacture and sale of electric wires. The general status of the second instance judgment is as follows:
General status of Table 1.
(As of December 31, 2014, as of December 31, 2014: KRW 00,000
On September 24, 164205, Sep. 24, 1947, 7015, 7324, 7324, 75011, 96306, Korea Electric Cable 519,6421,6421,4626, 64257, 80257, 8037, prior to the date of the establishment of net income per capital sales, sales, business profit, profit, net income of the company; and
*Country: Electronic Publication System of the Financial Supervisory Service and Data submitted in mind
1) Characteristics of the electric wire industry
2 The electric cable industry is a large-scale device industry that requires large amount of facility investment.On the other hand, the scale of the facility investment takes place after the facility investment takes place, and a series of processes up to the final production of the product mutual connection with each other, without additional costs.
A person shall be appointed.
1) In the name of each company below, the term “stock company” is omitted.
A variety of varieties can be produced only by changing the process of process. Therefore, equipment efficiency and facility regulations can be produced.
Since the market competitiveness is determined by the mother, large enterprises tend to concentrate on production.
3. In addition, the electric cable industry is a business with a large portion of raw materials so that the cost of purchasing raw materials can account for about 80% of the cost of manufacturing. Raw materials are used in copper and Aluminium, and the total quantity of electric wires is 90% of the total quantity of electric wires. Therefore, the change in the price of electric wires is directly connected to the change in the price of electric wires or the profitability of the electric cable manufacturing.
4. Electric wires are produced in various ways according to their use, and they are multi-level and multi-standard products as much as the type of electric wires will be subdivided into approximately 25,000 paper. Accordingly, the establishment of a specialized production system between enterprises is insufficient and the form of main production industry is formed. Because the ability to develop products is important, industrial concentration is being centered on large enterprises, but the growth potential of small and medium enterprises is also high.
(ii) the current domestic electric wire market;
5 In the case of a general cable product with low added value, competition between small and medium enterprises has been strong, while large-scale investment facilities and high-rises with technical barriers for entry into the market are competing among large enterprises in the case of a special product. In Korea, large enterprises, such as ELS Cable, KIN Cable, Gaon Cable, Gaon Electric Cable, Iljin Electric Cable, etc. occupy at least 60% of the total market. These cable industries can be divided into the government payment market and the market market according to the demand location, and the market for the market is again divided into the public demand market and the general market.
The main consumer of the government supply market is the Korea Electric Power Corporation, the Korea Railroad Corporation, the Korea Railroad Facilities Corporation (hereinafter referred to as the “railroad Facilities Corporation”), etc., and mainly distributes electric power lines (low, middle, high, high-tension lines), communications lines, etc. The items supplied in the government supply market are required for products and services of public nature. As such, consumers of the goods concerned are entitled to supply only to operators capable of supplying them with strict standards and product testing procedures. Suppliers of low voltage and high-tension power lines are entitled to supply them.
The number of suppliers of high-tension power is more than 20, but the number of suppliers of high-tension power;
The level of 4 to 8 is about 4.
The major consumers of the public-private partnership market in the market are large constructors, and there are a large demand for low-tension power lines installed mainly within apartment buildings or factories. The suppliers of the public-private partnership market are determined by consumers, and each construction company registers large companies, small and medium enterprises, and large agencies as bidding participants and purchases them through open bidding.
8 The general market is a place where power lines, telecommunications lines, etc. are distributed through agencies, etc., and the consumers are diversely engaged in small and medium-sized construction companies, electricity and telecommunications construction companies, electrical and electronic equipment manufacturing companies, machinery manufacturers, automobile and ship parts manufacturing companies, and general consumers. These users purchase multi-level electric wires of different types and specifications, and thus, they are mainly small and medium-sized enterprises suitable for multi-variety production, and the number of suppliers is large to the extent of 200.
(c) the concept of train control cables (a summary of the bid for the purchase of train control cables) by the Korea Railroad Corporation;
9 A train control cable is an cable installed in the circuit between the automatic train control device, the intensive control device detection and control points of high-speed railroads and the central control room, and a cable that carries out complicated functions such as transmitting various operational information and remote control signals to the signal-related equipment of a train without errors.
(ii) bidding methods;
10 The Railroad Facility Authority shall procure directly through the KR Electronic Procurement System as the only consumer of the domestic train control cable. The train control cable shall be a product particularly required to ensure safety and technical capacity, and the procurement process shall be initiated through a limited competitive bid 2), the results of delivery, the passing of the national certification test, etc.
A person shall be appointed.
2) Limited competitive tendering means imposing restrictions on qualification for participation in a competitive tendering procedure. The type of restrictions of general application shall be the operator of the relevant area, holder of the same kind of performance, holder of facilities or technology, or holder of capacity exceeding a given scale;
Only a small number of electric wires manufacturers who have acquired a certain qualification may participate. The period of 2012 shall be
an enterprise qualified to participate in a tendering procedure by obtaining KS certification is the ion cable, extreme cable, scarlet cable, electric cable, electric cable, and a total of five electric power stations.
11. The procedures for the procurement of goods by the Railroad Facility Corporation shall be the lowest price system under the qualification examination based on the Act on Contracts to which the State is a Party, and the outline order shall be as follows:
Tender Procedures for Table 2
Multiple reserve price lottery and bid bid;
The net qualification examination for a minimum bidder below the estimated price;
Selection of Successful Bidder
? ? ? ?
12. The Railroad Facility Corporation shall do so by referring to the examination of design price, price investigation, etc. at the time of public tender.
Each enterpriser participating in a tender will draw up four of the 15 estimated non-sale prices generated within the limit of 3) on the basis of the bid at the same time as the bid. The arithmetic mean of these values is the "estimated price (e.g., estimated price)".
13) Among bidders with more than 4 successful bid price than the estimated price, the minimum price shall undergo a qualification examination for the railroad facility construction division in the order of bidders, and when the comprehensive average point is at least 85 points, the successful bidder shall be determined as the successful bidder.
(iii) the status of bidding orders for train control cables;
For the period of between 14 and 2014, the current status of bidding for the purchase of train control cables ordered by the Railroad Facilities Corporation shall be as listed in the following table:
A person shall be appointed.
There are restrictions on market amounts, supply capability, financial status, and small and medium enterprise owners.
3) The scope of the instant bid price is -5% (95-100%) on the basis of the basic amount.
4) Successful bidder means the lowest bid price that can be awarded in a competitive bidding, and the bid price for this case shall be 80.495% of the fixed price.
The status of orders for purchase of train control cables between 2007 and 2013 in Table 3.
On July 27, 2007, Jun. 12, 2007, the bid price ratio for the successful bidder who is the scheduled date of the annual public announcement is 13,010,000,000 ion Cables 13,010,000,000,0081.079% on December 31, 20109; on January 12, 2010, 2013: 2,003,03,03,03,420,05, 639,205,81,805,805,80,81,805,80,80,000,000: 16,014,00,005,05,000,000,05,000,000,000:3,05,005,05,000,05,013,00
2. Determination of illegality
(a) the facts of recognition and basis 1) the agreement
15 2012. 8. 29. 오후와 2012. 8. 30. 오전에 가온전선 김$$ 차장, 대원전선 안ㅇㅇ 건 책임, 대한전선 오ㅇㅇ 차장·이ㅇㅇ 대리, 일진전기 이** 부장(이하 ‘4개 사업자 영 업담당자들’이라 한다) 등은 각각 사당역 인근 커피숍과 회원역 인근 커피숍에서 모 임을 갖고 철도시설공단이 2012. 8. 24. 입찰 공고한 호남고속철도 열차제어케이블 구매입찰 관련한 낙찰자를 사전에 결정하여 낙찰자는 들러리에게 총 발주물량의 1/n 을 배분하며 극동전선의 경우는 입찰참여자격이 있는 것으로 확인되면, 낙찰자가 책임 지고 극동전선과의 합의 문제를 해결하기로 의견을 모은 다음, 사다리타기 방법으로 대원전선을 낙찰자로 결정하였다.
16 대원전선 안ㅇㅇ 책임은 2012. 8. 30. 오후에 극동전선 최ㅇㅇ 차장에게 전화로
(1) If the agreement of the business operators in charge of the above 4 business operators is notified, the volume of the successful bid for the agreement shall be determined by
On the terms of allocation, they requested to participate in Russia, and the extreme array decided to participate in the agreement above.5)
17 그 후 대원전선 안ㅇㅇ은 가온전선, 대한전선, 일진전기, 극동전기 영업담당자 들에게 기초금액 대비 95% 이상으로 투찰해 줄 것을 요청하였다.
18 한편, 일진전기 박ㅇㅇ 부사장은 이** 부장으로부터 합의 내용를 보고 받고 이를 승인하였을 뿐 이 사건 공동행위를 제지하기 위해 별다른 조치를 취하지 않았 다.
2) Implementation of agreements
19 In the purchase tender of this case as agreed, the parties to the trial failed to comply with the following table 4.
The result of bidding on Table 4
(unit: Won (including value-added tax), %)
20,721,089,0255.52 Successful 20,737,755,7595.60,60,830,000,02096.02 20,833,533,536,546,92796.04 Successful 20,83,546,92796.04
* The bid rate (the bid price / Estimated price (21,691,145,248)
As a result of the 20 bidding, the member cable selected as a successful bidder shall enter into a contract for the purchase of train control cables for Honam High-speed Railroad with the Korea Railroad Facility Corporation with the contract amount of 20,112,538,325 won on September 13, 2012.
A person shall be appointed.
5) The four business officers knew that the extreme wire is not qualified to participate in the bidding or that it is not capable of producing train control cable, and did not participate in a meeting of the business officers. In fact, the extreme wire did not have production facilities and ordered the quantity that the party to the agreement of the collaborative act of this case, as the result of the lack of production facilities, the quantity taken from the Kowon Cable, **** again.
21. Statement in the trial tribunal by the inquiree that the successful bidder, bid price and bid price are combined with each other in order to exclude competition, as above, the document of the Railroad Facility Corporation (No. 1-1 through 1-96 of the examination report) related to the purchase of this case, the train control cable receipt between the inquiree and the inquiree (Evidence No. 1-10 and 1-11 of the wall), the train control cable receipt (Evidence No. 1-10) between the inquiree, the receipt of expenses for the collegiate gathering (Evidence No. 1-12 through 1-13 of the wall), the statement of the inquiree's officers and employees, and the confirmation document (Evidence No. 2-1 through 2-10 of the wall) etc.
B. Relevant legal provisions and legal principles 1) legal provisions
Monopoly Regulation and Fair Trade Act (hereinafter referred to as the “Act”)
Article 19 (Prohibition of Unfair Collaborative Acts) (1) No enterpriser shall agree with another enterpriser to jointly engage in any of the following acts that unfairly restrict competition (hereinafter referred to as "unfair collaborative act") or allow another enterpriser to engage in such act:
1. through 7. (Omission);
8. Deciding successful bidder, successful bidder, bidding price, successful bid price or successful bid price, and other matters prescribed by Presidential Decree;
(2) through (5)
2) Relevant legal principles
22 In order to establish an unfair collaborative act under Article 19(1) of the Act, first, Article 19 of the Act
A person shall be appointed.
6) hereinafter “Examination Report No. - Evidence” shall be indicated as “Bed No. - Evidence”.
Any contract, agreement, resolution, or any other method with another business entity with respect to any act referred to in each subparagraph of paragraph (1).
Secondly, the agreement must unreasonably restrict competition. (A)
(1) The meaning of the agreement
23. An unfair collaborative act under Article 19(1) of the Act is established when an enterpriser agrees with another enterpriser to engage in an act falling under any of the subparagraphs of the same paragraph which practically limits competition in a particular business area, and thus, it does not require that an act in accordance with an agreement has been practically committed.
24 The term “agreement” refers to the agreement of multiple enterprisers. Here, the term “agreement of intention” refers to an agreement in a broad sense, and it does not necessarily need to be a legally effective contract made with an offer and acceptance. It is a broad concept that includes an implied agreement, i.e., an express agreement, such as a contract and an agreement, and an implied agreement or agreement, such as an agreement, among the enterprisers, as it refers to the communication between the enterprisers. In other words, an agreement in an unfair collaborative act includes not only an express agreement such as a contract and an agreement, but also an implied agreement or an implied agreement such as an agreement among the enterprisers.
(2) An act falling under Article 19(1)8 of the Act;
25. "Act determining successful bidder, successful bidder, bid price, successful bid price or successful bid price or other matters prescribed by Presidential Decree in bidding or auction" in Article 19 (1) 8 of the Act means an act of prior agreement between a successful bidder and a successful bidder, bidding price, etc. in bidding.
B) Restriction on competition
A person shall be appointed.
26 competition-restricted means competition in the market by business operators jointly engaging in any act.
This reduction means cases where it is likely to affect the price, quantity, quality, determination of other terms and conditions of transactions, etc. according to the intent of the participants in the collaborative act.
27 Whether a collaborative act restricts competition or not should be determined individually by examining whether the collaborative act causes or threatens to cause impacts on the determination of price, volume, quality, other terms and conditions of trading, etc., by reducing competition in a particular business area due to the collaborative act, taking into account various circumstances such as the characteristics of the relevant product, consumer selection criteria, and the impact of the relevant act on the market and enterprisers.
28. However, the act of enterprisers' joint decision-making or change of the price is likely to affect, or threaten to, the free price determination according to their intent by reducing the price competition within the scope of such decision-making or change. Therefore, the collaborative act of such enterprisers is considered to be unfair unless there are special circumstances.
C. 2. A. Whether the respondent is illegal or not there is an agreement
In full view of the facts recognized in the above 2.2. A. (i) and the relevant statutes and legal principles, it is recognized that there was a mutual agreement between the interested parties on the intent of allocating the successful bidder, bid price, and successful bid price while participating in the purchase bid of this case, and such agreement of intention constitutes a combination under Article 19(1)8 of the Act.
2) Determination on restriction on competition
30 Successful bidder, bid price, and fall under the agreement of the two parties in advance in the purchase tender of this case
A person shall be appointed.
8) Supreme Court Decision 2008Do6341 Decided May 26, 2011
9) Supreme Court Decision 2009Du7912 Decided April 12, 2011
Based on the determination of the distribution of the quantity of the bid, the agreement to participate in the bidding formally shall be reached.
It is clear that the purpose of the competition system is to eliminate the possibility that successful bidders can be determined through substantial competition in the bidding market by nullifying the purpose of the competition system by causing only one company without any substantial competition to participate in the bidding and award a successful bid. Therefore, it is recognized as an act of unfairly restricting competition since it is clear that there is no economic efficiency.
31. The 2. A' act of the respondent falls under Article 19.1.8 of the Act, so it is illegal.
(a) Corrective measures and imposition of penalty surcharges;
32. Corrective orders are issued pursuant to Article 21 of the Act to ensure that the acts identical or similar to the instant collaborative act are not repeated in the future. Since the instant collaborative act has no efficiency increase effect due to its nature and it is apparent that it has only restricted competition effect, it shall be subject to imposition of penalty surcharges on the persons subject to such judgment pursuant to Articles 22 and 55-3 of the Act (amended by Act No. 11406, Mar. 21, 2012); Articles 9, 61 [Attachment 2] and 61 of the Enforcement Decree of the Act (amended by Presidential Decree No. 23864, Jun. 19, 2012); public notice of the detailed criteria for imposition of penalty surcharges (amended by Act No. 2012-25, Aug. 20, 2012; hereafter referred to as “public notice of penalty surcharges”).
(b) Calculation standards of penalty surcharge 1);
A) Relevant sales
33. The contract was entered into by the member cable with the bid according to the collaborative act of this case.
The sales related to the violation are 18,284,125,750 won, which is the contract price (excluding value-added tax) that the class cable entered into with the railroad facility construction service in connection with the purchase bid of this case.
B) Base rate
34 In light of the substance and ripple effect of the collaborative act in this case, the standard rate of imposition of 7.0% shall be applied in accordance with the provisions of 4.1.c. (1) (a) of the penalty surcharge notice, on the ground that the gravity of the collaborative act in this case falls under the category of "seriously serious violation", and thus, the standard rate of imposition of 7.0% shall be applied in consideration of the fact that the competitive act in this case is already inherent in a certain degree as competition is possible by granting qualifications for participation in tendering by the Korea Railroad Facility Corporation.
C) Calculation Criteria
35 Calculation Criteria shall be determined by multiplying the relevant sales revenue of the above subparagraph (a) by the imposition standard rate of the above subparagraph (b). In addition, the persons who participated in the tendering procedure and failed to receive a successful tender shall be reduced by 1/2 of the calculation criteria pursuant to the provisions of paragraph (1) (e) of this Article.
36 The criteria for separate calculation of the person to be judged as above shall be as follows:
Criteria for calculation of Table 5.
The base rate for calculating the reduction rate of persons who have excluded from the base rate for imposing the sales related to the person under question, 18,284,125, 7507.0-1,279,88,802, 1284, 7507.0% 18,284, 7507, 7507, 507.0% 18,284,284, 125, 7507, 507, 50639, 404, 401, 18,284, 125, 7507, 7507, 194, 401, 18, 284, 7507, 7507, 6394,401, 401, 18, 284, 7507, 7507, 12
(ii) the first adjustment;
37.2.2.(b) According to the provisions of paragraph (1), if the violating enterpriser has been subject to measures for violation of the Act more than three times during the last three years and the total sum of penalty points is not less than five points, the criteria for calculation may be aggravated.
38 Based on the date ( October 16, 2014) on which the Fair Trade Commission has dispatched the survey official document of this case to the inquiree, the number of times of the law violation, three times of given points, and the total sum of given points shall be 9 points, and therefore 10/100 of the mountain schedule shall be aggravated.
39 The criteria for the calculation of the first adjustment by the person in question shall be as follows:
Table 6. Calculation Criteria of First Adjustment
Standard Adjustment Rate 1,279,88,802-1, 279,88,888,802-1, 279,88,802 639,944,4010%703,938,841 ion Electric Cable 639,94,401-639,944,401-639,401-639,401 ion Electric Cable 639,944,401-639,404,401 gross Cable 639,944,401 Electric Cable 639,944,401-639,94,94,401
(iii) the second adjustment;
40 Since the first class of electricity was directly involved in the collaborative act in this case, 10/100 of the first class of electricity shall be aggravated.
41 The persons under investigation shall consistently recognize the facts of the act from the investigation stage to the completion of the hearing by the Fair Trade Commission, and take into account the fact that they actively cooperate in the investigation by submitting materials helpful to determine illegality and making statements, etc., 30/100 of the first adjustment basis shall be reduced.
A person shall be appointed.
10) 박ㅇㅇ 부사장
42 The criteria for calculation of the second adjustment by the person in question shall be as follows:
Table 7. Calculation Criteria of Secondary Adjustment
The second adjusted calculation standards for the second adjusted calculation rates for the second adjusted 1,279,88, 802-△△△895,922, 161, 838, 810% of △△363,1539, 944, 401-△△△401, 167, 639, 944, 401, 6394, 401-△△3047, 6394, 401-△△47, 961, 080, 6394, 401-△△△△47, 961, 080, 6394, 6394, 401-△△△△47, 961,080, 080
4) Determination of penalty surcharges
43. The Korean Electric Cable is the average amount calculated by adding the net income for the immediately preceding business year, the preceding business year, and the preceding business year to 3:2:1, respectively, and considering that the average amount has been increased by 3:2:1, and 60 percent of the standard for the second adjustment calculation shall be reduced by taking into account the financial statements of the business year immediately preceding the date of deliberation.
44 The penalty surcharge for each person to whom the case is tried (the amount shall be reduced by less than a million won) shall be as follows:
Penalties for imposition of Table 8
The adjusted calculation standards for the second adjusted 195,922, 161-895,00,000, 563,151,072-563,000, 000, 447,961,080-47,000, 961,080-47,961, 080-47,080-47,000, 000 gross wire 447,961,000, 000 gross wire 447,961,080,000,
A person shall be appointed.
11) The total amount of capital (35.8 billion won) on the financial statements in 2014 is less than the capital (5.15.6 billion won) and partial capital potential.
45 Any act of the person under question is in violation of Article 19(1)8 of the Act, and a decision shall be made as per the order by applying Article 21 of the Act to corrective measures, and Article 22 of the Act to the imposition of penalty surcharges, respectively.
The Fair Trade Commission has resolved as above.
July 15, 2015
of the head of the Gu, the head of the
The above Won Kim Ho-ho
F.C. H. H.R.