Defendant 1, et al.

Defendant 1, et al. and prosecutor

Escopic iron

Law Firm, Pacific, Attorneys Oi-seok et al.

Seoul Central District Court Decision 2007 Godan6399 Decided February 14, 2008

The judgment of the court below is reversed.

Defendant 1 Company shall be punished by a fine of KRW 130,00,000, Defendant 2 Company, Defendant 3 Company, Defendant 4 Company, and Defendant 5 Company by a fine of KRW 180,00,000,000, and Defendant 6 Company by a fine of KRW 150,000,000, respectively.

1. Summary of grounds for appeal;

A. Defendant 1 corporation

(1) The co-operation due to the division of section

㈎ 이 부분 공소사실은 그 자체로 독점규제 및 공정거래에 관한 법률(이하 ‘공정거래법’이라 한다) 제19조 제1항 제1 , 2호 는 적용되지 않음에도 원심은 위 각 호를 적용하였고, 이러한 위법은 판결 결과에 영향을 미쳤다.

㈏ 피고인 1 주식회사는 다른 피고인들과 공구분할 협의를 한 바 없다. 피고인 1 주식회사는 오래 전부터 독자적으로 이 사건 701 공구 입찰을 준비해왔고 공구분할 협의를 통해 701 공구를 배정받은 것이 아니다.

㈐ 피고인들 사이의 협의가 인정되더라도 입찰 자격이 되는 다른 건설사의 수를 고려하면 피고인들 사이의 협의만으로는 담합이 불가능하고, 실제 701 공구에 입찰참가한 회사들을 고려하면 경쟁 제한성도 인정될 수 없다.

D. The point of any collaborative act arising out of the Dorative tender

㈎ 이 부분 공소사실은 그 자체로 공정거래법 제19조 제1항 제2 , 4호 는 적용되지 않음에도 원심은 위 각 호를 적용하였고, 이러한 위법은 판결 결과에 영향을 미쳤다.

㈏ 피고인 1 주식회사는 유찰 방지를 위해 공소외 1 주식회사에 입찰권유만 하였을 뿐 소위 ‘들러리 입찰’에 관하여 합의하지 않았다.

㈐ 다른 입찰자인 공소외 4 주식회사와의 실질적인 경쟁이 이루어진 점, 공소외 1 주식회사도 투찰율을 자유롭게 결정할 수 있었던 점 등을 고려하면 피고인 1 주식회사의 공소외 1 주식회사에의 입찰 권유는 가격 결정 등 경쟁 구조에 왜곡을 야기하지 않아 경쟁제한적 효과가 없다.

【Violation of the Framework Act on the Construction Industry

Defendant 1 and Nonindicted Co. 1 did not agree on the price, and considering the fact that the bid price of Nonindicted Co. 1 was lower than Defendant 1 Co., Ltd., Defendant 1 and Nonindicted Co. 1’s bid price, there is no “the purpose of hindering unjust profit or fair pricing” under the Framework

· Unfair sentencing

In consideration of the various circumstances of this case, such as the problem of alternative design bid and the fact that there is no profit from unjust enrichment, the sentence of the court below is too unreasonable.

B. Defendant 4 corporation

When considering the various circumstances of this case, such as the problem of alternative design tender, the sentence of the court below is too unreasonable.

(c) Prosecutors;

Although there are grounds in the Act on Contracts to Which the State is a Party (hereinafter “State Contract Act”), the Defendants constitute an illegal collaborative act prohibited by the Fair Trade Act, since the Defendants are companies capable of independently performing subway 7 extension construction works, which are the companies capable of being awarded a contract, and constitute the instant joint collaborative body in order to increase the possibility of winning a contract and reduce competition in bidding, which constitutes an unfair collaborative act prohibited by the Fair Trade Act. Nevertheless, the judgment of the court below that acquitted the Defendants on this part of the facts charged is unlawful.

2. Determination

A. Determination on Defendant 1’s assertion

(1) The co-operation due to the division of section

㈎ 적용법조

The facts charged in this part of the facts charged are that the employees in charge of each bidding of six companies agreed to participate in only one bid of each of the six sections of the subway section of this case with respect to the duties of the Defendants, and it constitutes an act of restricting the transaction area or the counter-party to the transaction with other business operators. However, since there is no content that the Defendants agreed on the bid amount or bidding method, it cannot be deemed that the agreement of the Defendants constitutes “an act of determining, maintaining or changing the price” under Article 19(1)1 and 2 of the Fair Trade Act and “an act of determining the conditions for the transaction of goods or services, or the conditions for the payment of the price or the price thereof” under Article 19(1)1 and 2 of the Fair Trade Act. However, in full view of the facts charged in this part of the facts charged and the application of the statutes, the court below erred by applying Articles 19(1)4 and 19(2) of the Fair Trade Act other than this part of the facts charged. Thus, Defendant 1's assertion

㈏ 공구분할 합의

According to the evidence duly admitted and examined by the court below, since the employees in charge of tendering of the Defendants were gathered, as shown in the facts charged, and there were two or more companies engaged in the same construction section among the construction sections of this case 701 through 706, and there were concerns that the successful bid amount would be reduced, and the excluded companies would be likely to suffer losses, such as design cost incurred in the process of tendering, etc., and the excluded companies would not recover the expenses, from the six construction sections of this case. The six companies did not participate only in one construction section among the six construction sections of this case, and where two or more companies compete within the same construction section, the pertinent company would not be adjusted. The employees in charge of tendering of the 701 construction section of this case, Defendant 1 and the 502 construction section of this case, Defendant 2 and the 503 stock company did not participate in the tendering procedure, and the remaining employees in the construction section of the 707 construction section of this case, Defendant 1 and the 703 stock company did not participate in the tendering procedure.

㈐ 경쟁제한성

In full view of the fact that the Defendants occupied 6th level in the top 1st order of the contract for the construction work in the internship and the 100 billion won or more, and occupied 80% or more in the tender market for the 1,000 won or more and possessed 80% or more in the construction industry, such as market control rate, company size, construction work performance, etc. disadvantageous to the so-called “BIG 6” in the construction industry, the instant tender for the construction project is subject to the qualification examination, and this qualification examination score is converted into the tender performance score among the tender score items. The construction companies that can obtain a full score according to the criteria for the evaluation of qualification examination exclude the Defendants, which are only 10 construction companies, and if the Defendants were to obtain a lower bid price, the bid price would have been determined at a lower level. In the case of the tender for the same construction section, it is evident that the Defendants’ respective construction sections for which the Defendants are to make a tender in the same construction sector, and thus, there is no reason to agree between the Defendants 1 and 4 other construction sections.

D. The point of any collaborative act arising out of the Dorative tender

㈎ 적용법조

The facts charged in this part of the facts charged are that employees in charge of bidding of the defendant 1 corporation agreed with the non-indicted 1 corporation to participate in bidding at an amount equivalent to 80% of the bid price by the original design method with which the possibility of successful bid is low for the purpose of preventing the successful bid for the defendant 1 corporation, and this constitutes "the act of determining, maintaining or changing prices jointly with other enterprisers" and "the act of determining terms and conditions for the transaction of goods or services or the terms and conditions for the payment thereof" under Article 19 (1) 1 and 2 of the Fair Trade Act, but this part of the related market is limited to 701 section, so it does not constitute "an act of restricting the transaction area or the other party to the transaction" under Article 19 (1) 4 of the Fair Trade Act. Nevertheless, in full view of the facts charged and the application of the statutes in this part of the facts charged, since the court below erred by applying the provisions of the Fair Trade Act other than Article 19 (1) 1 and 24.

㈏ 공소외 1 주식회사와의 입찰 합의

According to the evidence duly adopted and examined by the court below, the employees in charge of Defendant 1’s bidding around October 2004 recommended Nonindicted Co. 1 to participate in the tender of 701 construction section for the purpose of preventing the bid from the bid bid of 701 construction section, and Nonindicted Co. 1 responded to this. Defendant 1’s bid even after Nonindicted Co. 4 applied for the participation in the tender on 701 construction section, it failed to participate in the bid, and Nonindicted Co. 4 maintained the participation of Nonindicted Co. 1 in consideration of the possibility of avoiding the request for the negotiation. Nonindicted Co. 1 participated in the tender, but did not purchase the most important design documents, and it is recognized that all other participating companies, such as the original design method of the tender, the bid bid bid rate of 80%, the design service company necessary for the application for the tender, and the waste disposal company, etc., were determined by Defendant 1 corporation.

According to the bid process, method, etc. of Nonindicted Co. 1’s bid, it is recognized that Nonindicted Co. 1 participated in the bid formally for the bid of Defendant 1’s bid without the intention to order the instant construction work. Determination of the bid ratio of Nonindicted Co. 1 as 80% by Defendant 1 appears to have been aware of Nonindicted Co. 4, which is another bidding applicant, Nonindicted Co. 4, and in light of such bid bid ratio, Defendant 1’s bid ratio was set to receive the highest price evaluation score. Thus, it cannot be said that Nonindicted Co. 1 participated in the bid of 701 construction site merely on the ground that Nonindicted Co. 1

㈐ 경쟁제한성

Defendant 1 Company did not have any other bidding participants as anticipated at the time of the agreement on the participation in the so-called “Nonindicted Co. 1” with Nonindicted Co. 1, and if Nonindicted Co. 1 did not formally participate in the bidding, re-tenders are conducted, and the bid price can be determined through substantial competition by participating in the bidding by another competitor. As such, the agreement to participate in the bidding constitutes an act of limiting competition in the bidding. The agreement alone constitutes a collaborative act under the Fair Trade Act, and even if there exists Nonindicted Co. 4, the other bidding participants, it constitutes a collaborative act under the Fair Trade Act, the restriction on competition in the said bidding agreement is recognized. The allegation in this part of

【Violation of the Framework Act on the Construction Industry

As above, the act of tendering at a prior manipulation price in collusion with Nonindicted Co. 1’s bid price is the most competitive relation even though Defendant 1’s competitive relation is not a competitive relation to the successful bid, and this is the purpose of acquiring unjust profits or impairing fair price decision. The allegation by Defendant 1’s assertion is without merit.

B. Determination of the Prosecutor’s argument

(1) Summary of this part of the facts charged

The Defendants enter into each contract with the Public Procurement Service, which is delegated by the authority awarding the contract after participating in the bidding of each of the construction sections in the name of the Defendants in connection with their business affairs. Defendant 1 Co., Ltd. has been preparing for bidding, such as the selection of a designer to participate in the tender of 701 construction section, and Defendant 2 Co., Ltd. with Nonindicted Co. 5 Co., Ltd., an independent construction capacity. Defendant 3 Co., Ltd., a competitor of 702 construction section, agreed with Nonindicted Co. 3 Co., Ltd., the above 703 construction section competitors, and Defendant 4 Co., Ltd., the above 704 construction section competitors, and Defendant 5 Co., Ltd., Ltd., a competitor of the above 705 construction section competitor, agreed to jointly conclude the contract or supply and demand agreement with the other joint supply and demand agreement and agreed to jointly supply and demand agreement to prevent any loss in the process of bidding, and jointly conclude the contract with the other joint supply and demand agreement or the other joint supply agreement.

B. Judgment of the court below

In full view of the fact that there is no clear evidence to acknowledge that the Defendants constituted a joint supply and demand organization only for the purpose of “restrictions on competition,” the lower court determined that the Defendants’ establishment of a joint supply and demand organization and the conclusion of a contract jointly with the Public Procurement Service cannot be deemed as a justifiable act permissible under the relevant law or Article 20 of the Criminal Act, and thereby, not guilty under the former part of Article 325 of the Monopoly Regulation and Fair Trade Act, on the grounds that the Defendants’ establishment of a joint supply and demand organization cannot be deemed as an unfair collaborative act under Article 19 of the Monopoly Regulation and Fair Trade Act.

【Judgment of the Political Party】

㈎ 공정거래법 제58조 의 정당한 행위 해당 여부

Article 58 (Justifiable Acts and Subordinate Statutes) of the Fair Trade Act provides that "this Act shall not apply to lawful acts conducted by an enterpriser or an enterprisers' organization in accordance with other Acts or any order issued under such Acts." Here, "justifiable acts performed in accordance with the Acts or any order issued under such Acts" refers to the acts necessary or minimum to be conducted within the scope of an order issued under the Acts or the relevant Acts, which specifically recognizes the exception of free competition in a business which requires high level of public regulation from the viewpoint of public nature, while the exclusive status of an enterpriser is guaranteed through a business or authorization system, etc. which is deemed reasonable to restrict competition due to the special nature of the pertinent business (see Supreme Court Decision 2004Du8323, Nov. 23, 2006).

Meanwhile, Article 25(1) of the State Contracts Act provides that “(i) The head of each central government agency or the public official in charge of contracts may enter into a joint contract with two or more parties to the contract, if deemed necessary for construction, manufacture, or any other contract.” Article 72(2) of the Enforcement Decree of the State Contracts Act provides that “If the head of each central government agency or the public official in charge of contracts intends to enter into a contract by competition, it shall enter into a joint contract as far as possible, unless it is deemed inappropriate to enter into a joint contract by the purpose and nature of the contract.”

The above content of the State Contracts Act is that it is possible for a public official in charge of contracts, etc. to enter into a joint contract with at least two parties to the contract, and in principle, it is possible and possible to enter into such joint contract. This is merely a provision allowing the Defendants to participate in bidding, and it is not a provision allowing specific exceptions to free competition in projects, etc. requiring high-level public regulation from the perspective of public nature. Therefore, it cannot be said that the Fair Trade Act is not applicable because the act of forming a joint contractor while participating in bidding ordered by a State agency, etc. constitutes legitimate act pursuant to the Act and subordinate statutes

Therefore, it is necessary to examine whether the composition of a joint venture, such as the facts charged by the Defendants, becomes an unfair collaborative act under the Fair Trade Act, and to consider the fact that it is inevitable to limit competition by each section, which is the related market of each joint venture, but the composition of a joint venture is legally possible, and to limit competition among the participating companies in the event of participation in

㈏ 인정사실

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

1) Order for construction work

The subway Corporation ordered the alternative construction method of basic design, which is a method that permits alternative design (ju 1) along with the original design bid. The ordering agency imposed additional points when it allows joint contracts through the formation of joint contractors and includes regional enterprises.

(ii) 701 tools;

A) From March 2004, Nonindicted Co. 2 concluded a design service contract with Nonindicted Co. 9 and Nonindicted Co. 10 on August 2004 and conducted design work by establishing a joint office with Nonindicted Co. 10 and Nonindicted Co. 2, as a result of an on-site investigation, such as topography investigation, surrounding facilities investigation, road conditions, and traffic volume, in order to participate in the alternative design method for the tender of the instant subway construction project.

B) Defendant 1 Co., Ltd. was in the state of forming a joint supply and demand organization with Nonindicted Co. 1, taking into account the construction capacity, bid score, etc., and around September 2004, the Nonindicted Co. 2 and Nonindicted Co. 2 agreed to additionally participate in the bidding. The participation in the bid was to be based on the design prepared by Defendant 1 Co., Ltd., and the existing design cost KRW 900 million paid by Nonindicted Co. 2 Co., Ltd., to share the joint supply and demand

C) Defendant 1, as the representative of the joint contractors, submitted a tender application on November 5, 2004 and submitted a tender on November 11, 2004. The participating construction company prepared a tender for the 701 construction section, and participated in the tender with the joint contractors and joint contractors, and participated in the original design.

D) Defendant 1 Co., Ltd. is 18th in the performance of subway construction in 2004, and Nonindicted Co. 2, as the 14th in all, has the independent execution capacity of the construction section 701.

(iii) 702 tools;

A) From February 2004, Nonindicted Co. 5 concluded a contract with Nonindicted Co. 13 to participate in the instant subway construction work 702 tools alternative design method, and set up a joint office and carried out design work.

B) Defendant 2 was in the state of forming a joint supply and demand organization with Nonindicted Co. 14, a local company, taking into account the construction capacity, bidding score, etc., and agreed with Nonindicted Co. 5 before submitting an application for participation in the bid on November 2004, to further participate. The participation in the bid is to be made as the design prepared by Defendant 2 Co. 5, and the existing design cost incurred by Nonindicted Co. 5 decided to be shared according to the share of joint supply and demand organization.

C) Defendant 2, as a representative company of the joint contractors, submitted an application for bid on November 5, 2004 and submitted a tender on November 11, 2004. Defendant 2, as a representative company of the joint contractors, did not prepare for or participate in the bid for the construction sections 702, in addition to the joint contractors and the joint contractors.

D) As part of the performance records of subway construction in the last ten years, Nonindicted Co. 5 and Defendant 2 and Nonindicted Co. 5 have an independent execution capacity of 702 construction sections.

(iv) 703 tools;

A) From March 2004, Nonindicted Co. 3: (a) from around March 2004, intended to participate in the instant subway construction project 703 tools alternative design method, Nonindicted Co. 3 designated a design firm to receive estimates, etc.

B) Defendant 3 was in the state of forming a joint supply and demand organization with Nonindicted Co. 15, a local company, taking into account the construction capacity, bidding score, etc., and agreed with Nonindicted Co. 3 to participate additionally in this context between Nonindicted Co. 3 and Nonindicted Co. 3 before submitting an application for participation in the bid around September 204.

C) Defendant 3, as a representative company of the joint contractors, submitted a tender application on September 22, 2004 and submitted a tender on November 12, 2004. Defendant 3, as a representative company of the joint contractors, did not prepare for or participate in bidding for construction sections 703, in addition to the joint contractors and the joint contractors.

D) Defendant 3 and Nonindicted Co. 3 have an independent execution capacity of the construction section 703.

5) Tools 704

A) From July 2004, Nonindicted Co. 6 concluded a design service contract with Nonindicted Co. 16 to participate in the instant subway construction 704 tools alternative design method, and set up a joint office and carried out design work.

B) Defendant 4 Co., Ltd. was in the state of forming a joint supply and demand organization with Nonindicted Co. 17, a local company, taking into account the construction capacity, bidding score, etc., and on September 2004, Nonindicted Co. 6 agreed to further participate between Nonindicted Co. 6 and Nonindicted Co. 6. The participation in the tender was to be made according to the design prepared by Defendant 4 Co. 3, and the existing design cost cost of Nonindicted Co. 6 Co. 6 paid KRW 1 billion to Nonindicted Co. 6 Co. 6

C) Defendant 4 Co., Ltd. submitted a tender application on November 5, 2004 and submitted a tender on November 12, 2004 as the representative company of the joint supply and demand company. In addition to the aforementioned joint supply and demand company and the said joint supply and demand company, there was no construction company preparing for or participating in bidding for construction sections 704.

D) Defendant 4 Co., Ltd. is the 12th performance of subway construction in 2004, and Nonindicted Co. 6 Co., Ltd. is the 21st 21st, using the 704 construction method necessary for the construction of the construction section at that time, and the 2nd Co., Ltd. participates in the 2nd 704 construction section and the 909 construction section of the Seoul subway.

6) 705 Tools

A) From October 2004, Nonindicted Co. 7 concluded a design service contract with the aim of participating in the instant subway construction work 705 tools alternative design method, and set up a joint office and carried out design work.

B) Defendant 5 was in the state of forming a joint supply and demand organization with Nonindicted Co. 19 and Nonindicted Co. 20, a regional company, taking into account the construction capacity, bidding score, etc., and on November 2004, Nonindicted Co. 7 and Nonindicted Co. 7 agreed to further participate with Nonindicted Co. 7. The participation in the bid was to be based on the design prepared by Defendant 5 Co. 5, and all the existing design cost of Nonindicted Co. 7’s progress was paid by Defendant 5 Co. 7 on behalf of Defendant 5, etc., and Nonindicted Co. 7 did not bear it.

C) Defendant 5 Co., Ltd. submitted a tender application on April 27, 2005 and submitted a tender on May 3, 2005, as a representative company of the joint supply and demand contractors. In addition to the aforementioned joint supply and demand contractors and the said joint supply and demand contractors, there was no contractor who prepared or participated in a tender for 705 construction sections.

D) As Nonindicted Co. 7 takes part in the construction related to the Incheon Songdo City, Defendant 5 and Nonindicted Co. 7, both of them, including Defendant 5 and Nonindicted Co. 7, who had high preference and extensive experience in subway construction in the Incheon area, which is the place of ordering the construction section 705 construction section, have an independent execution capacity of the construction section 705.

7) 706 Tools

A) From January 2005, Nonindicted Co. 8 entered into a design service contract with Nonindicted Co. 21 and set up a joint office to participate in the instant subway construction project from around January 2005 to the alternative design method for construction section 706.

B) Defendant 6 was in the state of forming a joint supply and demand organization with Nonindicted Co. 22, Nonindicted Co. 23, and Nonindicted Co. 24, including a regional company, taking into account the construction capacity, bidding score, etc., and on February 2005, the Nonindicted Co. 8 agreed to additionally participate with Nonindicted Co. 8. The participation in the tender was to be based on the design prepared by Defendant 6 Co., Ltd., and the existing design cost of KRW 1.32 billion paid by Nonindicted Co. 8 Co. 1 to share in the share of joint supply and demand organization.

C) Defendant 2 Co., Ltd. submitted a tender application on April 27, 2005 and submitted a tender on May 3, 2005 as a representative company of the joint supply and demand contractors. In addition to the aforementioned joint supply and demand contractors and the said joint supply and demand contractors, there was no contractor who prepared or participated in bidding for construction sections 706.

D) Defendant 6 and Nonindicted Co. 8 have an independent execution capacity of the construction section 702.

㈐ 공정거래법상 공동행위 해당 여부

According to Article 25(2) of the State Contracts Act, the members of the instant joint supply and demand company agreed to jointly enter into a contract with the Public Procurement Service when winning a successful bid. When preparing a contract under a joint contract, both the public official in charge and the other party to the contract are required to sign or affix their seals on the contract, and actually entering into a contract jointly with the Public Procurement Service. As such, the Defendants and Nonindicted Co. 2, Nonindicted Co. 5, Nonindicted Co. 3, Nonindicted Co. 6, Nonindicted Co. 7, and Nonindicted Co. 8 (hereinafter “Nonindicted Co. 2, etc.”) participate in the bidding in the manner of forming a joint supply and demand company. Accordingly, the acts of the Defendants and Nonindicted Co. 2, etc. to agree to participate in the bidding under the same bidding conditions, such as the price and design method jointly set by the joint supply and demand company, constitute an act of determining, maintaining, or changing the price under the Fair Trade Act, or a transaction condition of goods or services, or payment conditions or price thereof. However, the part of the facts charged shall be deleted.

㈑ 경쟁제한성 판단

An alternative design is more favorable than an alternative design, since the function and effect of the alternative design is superior to the original design, and the highest, lowest, and lowest gap between the design points is higher than the highest, lowest, among the items of tender evaluation, the highest, and lowest gap between the design points are more favorable for a competitor participating as an alternative design rather than the original design. Moreover, if a competitor participates as an original design, the competitor may know in advance the design evaluation points, and even in the price evaluation points, 80% below the estimated construction price is full, so a competitor may establish a tender price strategy reflecting the design points because he can grasp the bid price that he can obtain by highest notice. However, if a competitor participates as an alternative tender, it is difficult to know in advance the design evaluation or price evaluation points, and thus, it is difficult to determine the bid price ratio to more excellent and lower than the design.

In the case of construction sections 702 through 706, the Defendants were the only construction company in preparation for alternative tender for each construction section at the time. In the case of Section 702 through 706, there were only the construction company that actually prepares tender for each construction section, excluding the bidding company, and the Defendants were the only competitors who prepare alternative tender and the joint contractors who actually prepare tender for the alternative tender was completely dead. In the case of Section 701, the construction company that actually prepared tender except the bidding company and Nonindicted 2 Co. 4, who actually prepared alternative tender except the Defendant 1 Co., Ltd. and the original tender company other than the Defendant 1 Co. 2 Co., Ltd., Ltd. and the joint contractors with Nonindicted Co. 2, Ltd. were reduced by the competitors, and the rest of the competitors are relatively low competition, and it is possible to predict tender points.

In the case of Nonindicted Co. 3 in a construction section 703, even though there was no intent to participate in an alternative tender that requires a large amount of design cost without concluding an actual design service contract, it was sufficiently anticipated that the participation in the method of design for the original design that does not require almost all necessary expenses. Although the original tender is low in the competitiveness of successful tender, it is sufficiently anticipated that the strict competitor affects the bidding conditions of other competitors. Therefore, if the said construction company did not participate in a joint supply and demand organization and participated in the tender by independently designing the original design, the bid price of Defendant 3’s stock company would have been lower than the bid price by having been affected

On the other hand, even if there is a aspect of inducing the formation of a joint supply and demand organization with respect to a joint supply and demand organization containing a local enterprise in the ordering place, the Defendants had already formed a joint supply and demand organization with the other company by taking into account the above points prior to the formation of joint supply and demand organization with the non-indicted 2 corporation, etc., and such aspect is not deemed a cause for the formation of a joint supply and demand organization with the non-indicted 2 corporation, etc. In addition, there is no circumstance to deem the Defendants’ purpose of forming a joint supply and demand organization with the non-indicted 2 corporation, etc. as the pursuit of efficiency of construction technology, cost, etc. in addition to the avoidance of competition. Rather

In full view of the above facts, the Defendants’ act of forming the instant joint contractors with Nonindicted Co. 2 and the instant joint contractors is reduced in the event of competition, and the excluded company is a collusion with the intent of increasing the possibility of successful bidders and mainly put restrictions on competition in order to avoid the huge amount of design cost, etc. incurred in the process of preparation for bidding. Therefore, the Defendants’ act of forming the instant joint contractors with Nonindicted Co. 2 and the instant joint contractors is bound

㈒ 소결론

Therefore, the judgment of the court below which acquitted the Defendants on the ground that the composition of each joint supply and demand organization of the Defendants constitutes an unfair collaborative act under the Fair Trade Act cannot be maintained. The prosecutor's assertion is with merit.

3. Conclusion

Therefore, since part of Defendant 1’s appeal and prosecutor’s appeal are well-grounded, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the allegation of unfair sentencing by Defendant 1 and Defendant 4, and the judgment below is reversed, and it is again decided as follows.

The summary of the facts constituting the crime and the evidence acknowledged by the court below are as follows: "any act of determining, maintaining or changing the price, conditions for transaction in goods or services, or conditions for payment of the price or payment thereof," No. 6 of the judgment of the court of the court of the second instance, No. 6 of the criminal facts, No. 7 of the judgment of the court of the court of the second instance, No. 6 of the criminal facts, No. 7 of the judgment of the court of the court of the second instance, No. 8 of the criminal facts, No. 10 of the judgment of the court of the court of the second instance, No. 9 of the judgment of the court of the court of the first instance, No. 7 of the criminal facts, No. 8 of the judgment of the court of the court of the second instance, No. 10 of the criminal facts, No. 10 of the judgment of the court of the court of the court of the first instance, and No.

<8 through 13 Additional Parts of Crime>

8. Defendant 1 Company:

On December 30, 2004, an employee in charge of tendering, such as Nonindicted 25, etc., who is an employee of the defendant, participates in the tender for the above 701 construction section in the name of the defendant, and enters into a contract for the above 701 construction section with the Public Procurement Service delegated by the Seoul Special Metropolitan City, after winning the tender on December 29, 2004. From September of the same year, in order to participate in the tender for the above 701 Section, he has been preparing for bidding, such as the selection of a design service company from June of the same year to participate in the tender for the above 701 Section. In order to avoid the competition in the above 701 Section tendering process, he shall enter into the contract for the above 701 Section, and shall enter into the contract with the public procurement agency with the public procurement agency, and shall enter into the contract for the above 201 Section joint supply and demand agreement or jointly with the defendant 2, who is a competitor with the above 13rd Co., Ltd.

9. Defendant 2 Company:

On December 30, 2004, when an employee in charge of tendering, such as Nonindicted 26, who is an employee of the defendant, participated in the tender for the above 702 construction sections in the name of the defendant, and participates in the bid for the above 702 construction sections after the successful tender on December 29, 2004, enter into the contract for the above 702 construction sections with the Public Procurement Service delegated by the Seoul Special Metropolitan City, the ordering agency. From November 29, 2004, it was possible to prepare for bidding, such as the selection of a design service company from February 2 of the same year to participate in the tender for the above 702 Section construction sections, and it was a competitor with its independent execution capacity to form a joint supply and demand organization with the same method as specified in paragraph (1) to jointly enter into the contract with the public procurement agency with the defendant, Nonindicted 5, and 27, the same consortium, and to enter into the contract with the defendant 27 and the joint supply and demand agreement or joint supply terms and conditions of the above construction sections in accordance with other terms and conditions.

10. Defendant 3 Company:

On December 30, 2004, an employee in charge of tendering, such as Nonindicted 28, who is an employee of the defendant, participates in the above 703 construction section bidding in the name of the defendant, and participates in the bid on December 29, 2003 of the same year, and enters into a contract with the Public Procurement Service delegated by the Seoul Special Metropolitan City, the ordering agency, after winning the tender on December 29, 2004. In order to participate in the above 703 construction section tender on August 3 of the same year, he has been preparing for bidding, such as the selection of a designer, etc. from March of the same year, and has been formed with the public procurement agency in the same manner as described in paragraph (1) and agreed to jointly conclude the contract with the public procurement agency and distribute profits at the ratio of their respective investments, and agreed to enter into the contract with the defendant 3 and the above joint procurement agency or to limit the price of the above 703 construction section into a standard supply and demand agreement or joint supply agreement with the defendant 28 and demand agreement or joint supply agreement.

11. Defendant 4 Company:

On December 30, 2004, at the Public Procurement Service, Nonindicted 29, an employee of the defendant, participated in the tender of the above 704 Section 704 Section in the name of the defendant, and entered into a contract for the above 704 Section 704 Section 704 Section 7 with the Public Procurement Service delegated by the Seoul Special Metropolitan City, the ordering agency, after winning the tender on December 29, 2004. On November 1, 2004, it has been engaged in the preparation for bidding, such as the selection of a designer from July of the same year to participate in the tender of the above 704 Section 704 Section 7 Section 4 Section 50 Section 57 Section 4 Section 7222222, the agreement that the defendant and the public procurement agency agreed to jointly obtain the successful bid and jointly distribute the proceeds according to their respective investment shares in the above 704 Section 70 Section 57 Section 307 Section 4722222222.

12. Defendant 5 Company:

On August 18, 2005, an employee in charge of tendering, such as Nonindicted 30, etc., who is an employee of the defendant, participated in the tendering procedure for the above 705 construction section in the name of the defendant, and participates in the tendering procedure on the 11st of the same month, and entered into a contract with the Public Procurement Service delegated by Incheon Metropolitan City, the ordering agency, after the successful tender for the above 705 construction section. From April 27, 2004 to participate in the tendering procedure for the above 705 section tender, there was a preparation for the selection of a designer, etc., from around October 27, 2004, a competitor with an independent construction capacity, formed a joint supply and demand organization as described in paragraph (1) with the public procurement agency in the same manner as described in paragraph (1) and agreed to jointly enter into the contract with the defendant, Nonindicted 7 and the same consortium, Nonindicted 19, and Nonindicted 205, who agreed to jointly enter into the contract with the public procurement agency or other joint supply and demand entity.

13. Defendant 6 Company:

On August 16, 2005, an employee in charge of tendering, such as Nonindicted 31, etc., who is an employee of the defendant, participated in the tender for the above 706 construction section in the defendant's name with respect to his business affairs and participates in the tender for the above 706 construction section, and entered into a contract with the Public Procurement Service delegated by Incheon Metropolitan City, the ordering agency. From February of the same year, in order to participate in the tender for the above 706 section tender at the date of April 2005, he has been engaged in preparation for bidding, such as the selection of a designer, etc., from around February of the same year to participate in the tender for the above 706 section tender, he was formed with the public procurement agency in the same manner as described in paragraph (1), and agreed to jointly obtain the successful tender with the public procurement agency to jointly distribute the proceeds at the ratio of each person's investment, and agreed to enter into the contract for the above 70-party joint supply and demand agreement with the defendant 8 and the above joint supply and demand company.

1. Article applicable to criminal facts;

A crime No. 1 in the holding of the court below: Articles 70, 66(1)9, and 19(1)4 of the Monopoly Regulation and Fair Trade Act, Article 30 of the Criminal Act (the point of an unfair collaborative act)

Crimes of Articles 2 through 7 of the decision of the court below: Articles 70, 66 (1) 9, 19 (1) 1 and 2 (unfair collaborative act) of the Monopoly Regulation and Fair Trade Act, Article 98 (2) and Article 95 subparagraph 1 (the manipulation of bid price) of the Framework Act on the Construction Industry

Crimes of Articles 8 through 13 of the Judgment of the Court: Articles 70, 66 (1) 9, 19 (1) 1 and 2 (the point of an unfair collaborative act) of the Monopoly Regulation and Fair Trade Act

1. Commercial competition;

Articles 40 and 50 (Punishments 2 through 7 in the form of a violation of Monopoly Regulation and Fair Trade Act with heavy punishment) of each Criminal Code

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

The amount of fine as ordered shall be determined by comprehensively taking into account the characteristics of the instant construction work, the fact that a large amount of alternative design cost from 3 to 5% of the construction cost in advance for the alternative design bid, the Defendants’ respective bid ratio and the degree of successful bid price, etc.

Judges Lee Jae-sung (Presiding Judge)

(1) Alternative means the design that reflects new construction methods, new technology, air reduction, etc. having the equal or superior functions and effects that can replace the design prepared by the government with respect to the types of work on the working plans prepared by the government without changing basic policies and that can be executed in such a way that the price on the relevant working plans is lower than the price on the working plans prepared by the government and the construction period does not exceed the period on the working plans prepared by the government (Article 79(1)3 of the Enforcement Decree).