[1] Requirements for presumption of agreement on unfair collaborative acts under Article 19 (5) of the Monopoly Regulation and Fair Trade Act

[2] The presumption of agreement on unfair collaborative acts under Article 19 (5) of the Monopoly Regulation and Fair Trade Act and the standard for its determination

[3] The meaning of the starting date of the commission of the illegal cartel conduct and the criteria for its determination in imposing penalty surcharges on the illegal cartel conduct

[4] The case holding that the judgment of the court below which held that the date on which a steel company's steel price increase was the starting date of the violation without examining the market share, etc. which is the premise of the determination as to whether the steel company's act of practically restricting competition constitutes "the act of practically restricting competition" is unlawful

[1] If the Fair Trade Commission establishes that "the two or more enterprisers are committing an act falling under any of the subparagraphs of Article 19 (1) of the Act" in accordance with Article 19 (5) of the Monopoly Regulation and Fair Trade Act, and that "an act practically restricting competition in a particular business area" is "an act practically restricting competition in a certain business area", it is presumed that the enterprisers have agreed to perform such collaborative act without the need to prove the circumstances under which the enterprisers' express or implied agreement or understanding should be presumed clearly or implicitly agreed.

[2] A business operator who is presumed to have reached an agreement on unfair collaborative acts pursuant to Article 19(5) of the Monopoly Regulation and Fair Trade Act may destroy the presumption by proving that an act of the same or similar act externally revealed is practically identical or similar to that of the enterpriser without any agreement or mutual needs. On the other hand, in determining circumstances that can destroy the presumption of unfair collaborative acts, the presumption shall be reasonably determined by comprehensively taking into account the characteristics and status of the market in the pertinent product transaction area, characteristics and patterns of the product, distribution structure, price-fixing structure, and various internal and external impacts affecting the market in the relevant product transaction area, the status of each individual enterprise in the same trade area, the impact of the price change on the individual business profit and market share, etc., the legitimacy of the business judgment, the actual condition of direct communication, such as meetings between the business operators, etc., the degree of probability that the agreement can be reached even if there was no agreement, the experience of price prevention and economic experience at the time of the violation of the law, and the background of transaction policy, etc.

[3] According to Article 19 (5) of the Monopoly Regulation and Fair Trade Act, an agreement on unfair collaborative acts is presumed only when "the act of determining, maintaining or changing the price" falls under "the act of practically restricting competition." Thus, it is reasonable to see that the starting date of the implementation of the violation stipulated in the public notice of detailed guidelines for imposing penalty surcharges in relation to the period of the violation stipulated in Article 61 (1) [Attachment 2] of the Enforcement Decree of the same Act refers to the case where two indirect facts such as "the act of determining, maintaining or changing the price" and "the act of practically restricting competition" are all satisfied. As to when the price is determined, the market share of the enterpriser who determined, maintained or changed the price, and the characteristics and situation of the market that the enterpriser produces and sells shall be determined by comprehensively taking into account.

[4] The case holding that the judgment of the court below which concluded that the date on which the steel company's steel price increase was the starting date of the commission of the violation without examining the market share, etc., which is the premise of the determination as to whether the steel company's act of practically restricting competition constitutes "the act of practically restricting competition" is unlawful

[1] Article 19 (1) and (5) of the Monopoly Regulation and Fair Trade Act / [2] Article 19 (1) and (5) of the Monopoly Regulation and Fair Trade Act / [3] Article 19 (1) and (5) of the Monopoly Regulation and Fair Trade Act, Articles 9 and 61 (1) [Attachment 2] 6. / [4] Article 19 (1) and (5) of the Monopoly Regulation and Fair Trade Act, Articles 9 and 61 (1) [Attachment 2]6 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[1] [2] [4] [5] Supreme Court Decision 2002Du4433 Decided May 30, 2003 [1] [2] Supreme Court Decision 2000Du1386 Decided May 28, 2002 (Gong2002Ha, 1548), Supreme Court Decision 200Du6107 Decided May 28, 2002, Supreme Court Decision 2001Du946 Decided February 28, 2003, Supreme Court Decision 2001Du1239 Decided February 28, 2003 (Gong203Du946 Decided February 28, 2003; Supreme Court Decision 2003Du9389 Decided February 28, 2003; Supreme Court Decision 2003Du94839 Decided February 28, 2003; Supreme Court Decision 2003Du20939 Decided February 28, 20039.

Administrator of Korea Steel Industry Co., Ltd. and two others (Law Firm Pacific, Attorneys Kim Jong-ro et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Park Jong-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2000Nu15035 delivered on April 23, 2002

Of the judgment of the court below, the part on the order to pay the penalty surcharge against the administrator of the Plaintiff’s reorganization steel industry company and the Plaintiff’s Korean Steel company is reversed, and that part of the case is remanded to the Seoul High Court. All of the remaining appeals by the Plaintiffs and the appeals by the administrator of the Plaintiff’s steel industry company reorganization and the Plaintiff’s appeal by the Plaintiff 1 are dismissed. The costs of the appeal by the administrator of the Plaintiff reorganization steel industry company and the Plaintiff 1

1. According to Article 19(5) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Act"), if the Fair Trade Commission establishes the fact that "two or more enterprisers are committing acts falling under any of the subparagraphs of Article 19(1) of the Act" and that "an act practically restricting competition in a particular business area" is "an act practically restricting competition in a particular business area", it is presumed that the enterprisers agreed to commit such collaborative act without the need to prove the circumstances under which the enterprisers' explicit or implied agreement or understanding should be presumed clearly or implicitly agreed (see Supreme Court Decision 99Du6514, 6521 delivered on March 15, 2002).

The court below found that the managers of Incheon Steel Co., Ltd., Dong International Steel Co., Ltd., Korea Steel Co., Ltd., Ltd., and Korea Steel Co., Ltd. (hereinafter referred to as "Plaintiffs, etc.") had raised the price of the iron in the same manner by sending a notice or quotation to the seller and distributor, who is the demand source for the steel industry from February 1, 200 to February 7, 200, and determined that the above act of price increase by the plaintiffs, etc. can have an absolute influence on the price determination in the market because the plaintiffs, etc. had a market share of 10% in the domestic steel supply market at the time of supply, and that the above act of price increase by the plaintiffs, etc. constitutes an act of price increase by 1.2,00,000,000,000,000,0000,0000,0000,000,0000,000,000,000,000.

Examining the record in light of the above legal principles, we affirm the judgment of the court below as just, and there is no error in the misapprehension of legal principles as to Article 19(5) of the Act, or in violation of the principle of substantial rule of law or the principle of no punishment without law, as otherwise alleged in the grounds of appeal. The ground of appeal on this point is not acceptable.

2. According to Article 19(5) of the Act, a business operator who is presumed to have reached an agreement on unfair collaborative acts may destroy such presumption by proving that an act of the same or similar act disclosed externally was done independently according to each business judgment without any agreement or mutual needs. (See Supreme Court Decisions 2001Du946, Feb. 28, 2003; 2001Du1239, Feb. 28, 2003; 2001Du1239, Feb. 28, 2003). Meanwhile, in determining the circumstances that can destroy the presumption of unfair collaborative acts, the determination should not be made in light of the characteristics and situation of the market in the relevant product transaction area, the characteristic and mode of the product, the distribution structure, the structure of pricing, the impact of the status of each individual business in the same trade area on the market, the impact of the price change on the individual business experience and conditions of the business, the possibility that the agreement on unfair collaborative acts could reasonably be made in light of the legal reasoning of the agreement.

The court below rejected the above assertion on the ground that there is no evidence to acknowledge that the above presumption should be destroyed, on the ground that the plaintiffs' assertion that even if some of the red width increase accumulatedly in accordance with internal management plans to preserve even if there is a decrease in demand of construction business circles, the only market in the vicinity of steel industry, due to the aggravation of supply due to the size of facilities for producing excessive steel products, under the circumstances where the company reorganization procedure or composition procedure is in progress, the purchase price of raw materials and subsidiary materials, etc., and the price of the raw materials and subsidiary materials, etc., coincide with each other due to their technical production identity, etc., and thus, the above presumption should be destroyed.

Examining the record in light of the above legal principles, the court below's measures are just and acceptable, and there is no error in the misapprehension of facts by mistakenly selecting evidence in violation of the rules of evidence as alleged in the grounds of appeal. The allegation in the grounds of appeal on this point is not acceptable.

3. The court below rejected the plaintiffs' assertion that the violation period and the sales of related goods and services are unlawful on the grounds that the amount of each penalty surcharge imposed on the plaintiffs and the amount are penalty surcharges due to unfair collaborative acts of the plaintiffs in the written decision of the disposition of this case, and that the period of violation is specified in the written ruling, and that the relevant goods and services are not specified in detail in the written decision of the disposition of this case, but it appears that the written decision of this case presented the basis for calculating the penalty surcharge to the minimum extent consistent with the purpose of protecting the plaintiffs' rights and providing convenience to appeal and offering convenience to appeal.

According to records and relevant Acts and subordinate statutes, the judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the enactment of regulations on property rights of citizens or the presentation of grounds for calculating penalty surcharges, as otherwise alleged in the grounds of appeal. The argument in the grounds of appeal on this point is not acceptable.

4. The lower court determined on February 1, 200 and February 7, 200 of the plaintiffs' price increase by 100, 100 won for the first time, 200 won or less for the plaintiffs' price increase by 10, 100 won or less for the first time, 200 won or more for the plaintiffs' price increase by 10, 100 won or more for the first time, 200 won or more for the first time, 3.10 won or more for the first time for the plaintiffs' price reduction by 10, 400 won or less for the first time for the plaintiffs' price increase by 10, 100 won or more for the first time for the first time for the imposition of the penalty surcharge, 10 won or more for the first time for the imposition of the penalty surcharge, 205 won or more for the first time for the imposition of the penalty surcharge, 200 won or more for the first time for the imposition of the penalty surcharge, 3.105 won or more for the above period.

However, Article 61 (1) [Attachment 2] 6 of the Enforcement Decree of the Act provides that "the period of imposition of penalty surcharges for unfair collaborative acts x sales of related goods or services x 5/100 or less during the same period x public notice on the detailed criteria for imposition of penalty surcharges Ⅱ in relation to the period of such violation. The period of violation 5. (2) b. c. Article 19 (5) of the Act provides that the starting date of implementation shall be the date of the violation, and where the collaborative act is terminated by not later than the date the corrective order is notified, the expiration date shall be deemed the expiration date of the violation. According to Article 19 (5) of the Act, since an agreement on the imposition of penalty surcharges for unfair collaborative acts is presumed to be reached only when "the act of determining, maintaining or changing prices" falls under "the act of practically restricting competition .............. the period of implementation here means that the defendant's act of producing or selling the above price and the price of the unfair collaborative act shall be determined at any time."

According to the facts acknowledged by the court below, on February 7, 2000 when the price of the plaintiff Han Steel increased by the steel's price of the steel, all the plaintiffs, etc. with 100% market share in the domestic steel supply market, increase the price of the steel, and their price increase may have an absolute effect on the price determination in the market. Thus, their price increase may be seen as an "act practically restricting competition". Furthermore, in light of all the circumstances as stated in the court below's decision, the penalty surcharge in this case against the plaintiff Han Steel is appropriate. Thus, the decision of the court below to the same purport is just in conclusion, and there is no error of law by misapprehending the legal principles as to the criteria for imposing the penalty surcharge or the discretionary power to order the payment of the penalty surcharge, as alleged in the grounds of appeal.

However, on February 1, 200, when the price increase by Plaintiff Exchange Steel and Plaintiff Korea Steel and its price increase, there is a question as to whether their price increase constitutes “the act practically suppressing competition”, but the court below did not examine their market share, which is a premise of determining whether the above price increase constitutes “the act practically suppressing competition”, and the characteristics and current situation of the domestic supply market that they produced and sold, and immediately concluded on February 1, 200 as the starting date of the act of violation on February 1, 200 when their price increase. Accordingly, the court below erred in the misapprehension of legal principles as to the time of the act of violation which is the basis for calculating the penalty, or in the misapprehension of legal principles as to the time of violation, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

5. Therefore, of the judgment of the court below, the part concerning the order to pay the penalty surcharge against the plaintiff Cho Young Steel and the plaintiff Han Steel is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the above plaintiffs and the appeals by the plaintiff Han Steel are all dismissed. The costs of the appeal by the plaintiff Han Steel are assessed against the above plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)