[1] Standard for determining whether a collaborative act constitutes a “competitive competition” under Article 19(1) of the Monopoly Regulation and Fair Trade Act, and whether a business entity’s act of jointly determining or changing the price constitutes an unfair collaborative act (affirmative in principle)

[2] The meaning of "justifiable conduct conducted under the law or any order issued under the law" under Article 58 of the Monopoly Regulation and Fair Trade Act

[3] In a case where Gap bank et al. agreed to newly establish a purchase commission of KRW 20,000 per case in order to compensate for a decrease in profits arising from changes in the method of calculating the purchase interest of export bills, and subsequently, the Fair Trade Commission ordered correction and payment of penalty surcharges on the ground that the establishment of a purchase commission constitutes an unfair collaborative act under Article 19 (1) 1 of the Monopoly Regulation and Fair Trade Act, the case affirming the judgment below holding that the above collaborative act is restricted in competition, and it does not constitute a case where a legitimate act or illegality is excluded

[4] In a case where the law that forms the basis for administrative disposition provides the existing facts or legal relations that have not been terminated and thus provides a more unfavorable legal effect than before, whether it is a retroactive legislation prohibited under the Constitution (negative in principle) and the case where the application of the amended law may be restricted

[1] Article 19(1) of the Monopoly Regulation and Fair Trade Act / [2] Articles 19(1) and 58 of the Monopoly Regulation and Fair Trade Act / [3] Articles 19(1) and 58 of the Monopoly Regulation and Fair Trade Act / [4] Article 1 of the Administrative Litigation Act / [1] Article 1 of the Administrative Litigation Act, Article 13(2) of the Constitution, Article 4(2) of the Administrative Procedures Act

[1] [2] Supreme Court Decision 2007Du19416 Decided June 23, 2009 / [1] Supreme Court Decision 2008Du21058 Decided March 26, 2009 (Gong2009Sang, 576) Supreme Court Decision 2009Du11485 Decided February 11, 2010 / [2] Supreme Court Decision 2004Du8323 Decided November 23, 2006 (Gong2007Sang, 55) Supreme Court Decision 2009Du1983 Decided May 27, 2010 (Gong2010Ha, 1278) / [4] Supreme Court Decision 201Du207140 decided Oct. 12, 201; 2007Du301475 decided Oct. 27, 2017Du2017Du301475 decided Oct. 27, 2017

New Bank (Attorney Lee Im-soo et al., Counsel for the defendant-appellant)

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

Seoul High Court Decision 2008Nu17006 decided April 16, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Whether a collaborative act restricts competition under Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) should be determined individually by examining whether the collaborative act affects or is likely to affect the determination of price, quantity, quality, and other terms and conditions of trading by taking into account the characteristics of the relevant product, consumers’ standard for choosing products, and impacts of the relevant act on the market and enterprisers. Meanwhile, the act of enterprisers’ joint determination or change of price causes or is likely to affect free price determination to a certain extent according to their intent by reducing price competition within the scope of price competition. Thus, such collaborative act should be deemed to be unfair unless there are special circumstances (see Supreme Court Decision 2008Du21058, Mar. 26, 2009). The phrase “justifiable act conducted by law or an order issued by such law” under Article 58 of the Fair Trade Act refers to an act that is recognized as reasonable by the special nature of the relevant business in terms of business or exclusive status of enterprisers, etc., and on the other hand, it refers to an act that is recognized as necessary within 30.

On the other hand, the court below rejected the request from the Korea Federation of Banks, the Financial Supervisory Service, etc. to change the method of calculating the purchase price of the above 20% of the purchase fees for each of the above 0th anniversary of the fact that the Korea Exchange Association did not adopt the above 20th anniversary of its adoption of the evidence, and it did not request the Financial Supervisory Service to change the method of calculating the purchase price of the above 20th purchase fees for each of the above 0th anniversary of its use of the 20th purchase fees for each of the above 20th purchase fees for each of the above 20th anniversary of the fact that it is necessary to establish a mutual agreement on the improvement of the 20th purchase fees for each of the above 20th purchase fees for each of the above 0th purchase fees for the above 20th purchase fees for the above improvement of the 20th purchase fees for the above improvement of the 20th purchase fees for the reasons that the 20th purchase fees for the above improvement of the 20th purchase fees for each of the 20th purchase.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s fact-finding and judgment are justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles as to unfair collaborative acts and party acts under the Fair Trade Act or exercise of right to petition under the Constitution

2. Regarding ground of appeal No. 2

Unless otherwise provided in the transitional provision, an administrative disposition is in principle based on the amended Act and its subordinate statute that takes effect at the time of the disposition, unless otherwise stipulated in the transitional provision. Even in cases where the amended Act and subordinate statutes provide the previous and more unfavorable legal effects while being subject to the application of existing facts or legal relations, if such facts or legal relations are not completed or terminated before the amended Act and subordinate statutes enter into force, they shall not be deemed a retroactive legislation prohibited under the Constitution. In relation to the application of such amended Act, if the people’s trust in the existence of the preceding Act and subordinate statutes is deemed more worthy of protection than the public interest demand for the application of the amended Act and subordinate statutes, its application may be restricted (see Supreme Court Decision 201Du274, Oct. 12, 2001, etc.).

The lower court determined that the provision on the upper limit of penalty surcharge and its Enforcement Decree was prior to the amendment of the Act on December 31, 2004 (the enforcement date of the Act on April 1, 2005) and Article 8 of the Addenda to the Act on March 31, 2005, Article 8 of the Addenda to the Act on August 3, 2007, which was subject to the upper limit of penalty surcharge before the amendment pursuant to Article 8 of the said Addenda, was a violation of the current Fair Trade Act’s provision on the imposition of penalty surcharge before the amendment of the Act, and even if the amendment of the Act on March 1, 2005, it cannot be deemed that the Plaintiff’s application of penalty surcharge to the acts terminated after the expiration of three months from the promulgation of the Act on the Amendment was retroactively prohibited from the amendment of the Act, and that the provision on the imposition of penalty surcharge was retroactively prohibited from the amendment of the Act on the Establishment and Public Interest of the Act on the 300th anniversary of the amendment of the Act (the amended Act).

The above determination by the court below is just in accordance with the above legal principles, and there is no error of law that affected the conclusion of the judgment by misunderstanding the legal principles as to the law applicable to the calculation of penalty surcharge, or in violation of the principle of retroactive legislative prohibition, the principle of proportionality, and the principle of equality under the Constitution, and there is no error of law regarding Article

3. As to the third ground for appeal

According to the reasoning of the judgment below, in light of the fact that the collaborative act in this case continues for a relatively long period, and the market share of the plaintiff et al. in the export bill purchase commission exceeds 63% and has very significant effect on competition restriction due to the collaborative act in this case, the court below held that the collaborative act in this case constitutes a very serious violation. The court below held that even if the Financial Supervisory Service requested the plaintiff et al. to implement the calculation method of the conversion fee with the policy that the method of calculating the conversion fee should be changed from "in the same manner" to "in the same manner," the plaintiff et al. requested the implementation. However, even if there was a need to newly establish the purchase fee for the preservation of the reduced revenue, the newly established and specific fee rate should be decided independently in consideration of all the circumstances such as the business conditions, customer trends, cost factors, and the competition company's fee, etc., and thus, it cannot be deemed that the collaborative act in this case was committed, as alleged by the plaintiff, even if the purchase fee determined by the plaintiff falls short of the cost, it cannot be considered that the defendant's discretion.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error of law as alleged in the grounds of appeal, or of misunderstanding the legal principles on deviation and abuse of discretionary power, etc., which affected the conclusion of the judgment.

4. Conclusion

Therefore, the appeal is 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.

Justices Kim Nung-hwan (Presiding Justice)