2012Nu24353 Revocation of corrective orders, etc.

Co., Ltd.

Fair Trade Commission

May 31, 2013

November 8, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s corrective order and penalty surcharge payment order stated in the attached Table No. 2012-107, which was issued by the Plaintiff on July 12, 2012, shall be revoked.

1. Details of the disposition;

A. The Plaintiff, the farming court, the Samyang Food Co., Ltd., and the Korea Yoote Co., Ltd. (hereinafter referred to as “Plaintiff, etc.”) are engaging in the business of manufacturing and selling B, if all of these four companies were to be omitted, including the status and status of the Plaintiff, etc.

The general status of the plaintiff, etc. is as follows (as of December 31, 2010, the base, unit: KRW 00,000, name).

A person shall be appointed.

In Korea, the market share is more than 70% of the total shampoo and shampoo in the early 1980s and the market share is more than 10% of the total shampoo and the shampoo market. However, the market share of the shampoo and the market was reduced due to the time of the entry of new products for the agricultural trial, which became the first place in the 1985, and the so-called 'Tampoo' case in March 1989 has continued to be the shampoo-ju system in the agricultural trial.

The market share of each company based on the sales amount of plaintiffs, etc. is as follows:

A person shall be appointed.

B. On July 12, 2012, the Defendant issued a corrective order and a penalty surcharge payment order (hereinafter “instant disposition”) to the Plaintiff on the ground that the following acts of the Plaintiff et al. constitute an agreement with the business entity under Article 19(1)1 of the Monopoly Regulation and Fair Trade Act (hereinafter “the Act”) to jointly determine, maintain, or change the price with another business entity.

원고 등은 2000. 12. 말 내지 2001. 1. 초에 열렸던 대표자 회의에서 선발업체인 농심이 먼저 라면 가격을 인상하면 타사들도 동참하여 가격을 인상하기로 합의한 후 2001. 5.부터|2001. 7.까지 차례로 가격을 인상하는 등 그때부터 2010. 2. 초까지 도합 6차례에 걸쳐 차례로 출고가격을 인상하는 행위(이하 '이 사건 공동행위'라 한다)를 하였는바, 각 가격인상 때마다 통상 농심이 먼저 가격인상안을 마련한 다음 타사들에계 가격인상 내역 · 시기 등에 관한정보를 제공하고, 타사들도 이를 바탕으로 가격인상안을 만들어 서로 교환하는 방식을 사용하였다.

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons, and thus should be revoked.

1) Absence of agreement

Based on the following circumstances, the Plaintiff asserts that the instant collaborative act is merely an food concurrent act, and there was no agreement between the Plaintiff and others on the unfair collaborative act.

○ The Defendant determined that there was an agreement on the price increase between the Plaintiff et al. at the meeting of the representative held at the beginning of 2000, the end of 12, and the end of 2001 on January 28, 2001, and the ordinary meeting of 'The Council for Normalization of Trade Order' (hereinafter referred to as the "Council"), on the basis of the statements, etc. by the executives and employees who were fully exempted from penalty surcharges through voluntary declarations. However, there is no objective evidence to prove that there was no other agreement on price increase.

○ In Korea, due to the characteristics of the over-market market, it is very easy to do food parallel activities, and in particular, because the agriculture depth accounts for at least 70% of the total market, if the price of sub-contractors, including the Plaintiff, is natural to change similar to the agriculture deliberation price, which is the first-class company, and the price increase determined by the agriculture trial with absolute market share in advance with the government performed the role of the upper company as a kind of guidelines for others. In addition, if the Plaintiff’s price increase is a subsidiary that produces and supplies the Plaintiff, if it is apparent that the price increase is a part of the Plaintiff, it is not an agreement with the third company.

Most of the acts of communication between the Plaintiff, etc. have occurred between the company other than the Plaintiff, and some price information, etc. provided to the Plaintiff or provided by the Plaintiff is merely the fact that the Plaintiff had widely spreaded in the market prior to the provision of information. The exchange of information between the Plaintiff, Samyang and Yoote was conducted after the Plaintiff had already established the price increase proposal and completed the procedures for the parts within the part, so it did not affect the Plaintiff’s price determination. As to each price discount portion on January 2003 and April 2004, the Defendant did not present any evidence regarding the exchange of information. Moreover, the former employees of the Plaintiff, who were employed by the department that was not related to the price determination, are merely a job class and did not have any influence on the company’s decision-making.

○ In 2007, the Plaintiff, even though there were price factors such as the rapid increase in the prices of raw materials, did not only raise the most late price compared to other companies in order to increase the sales and market share, but also there was a difference between the agricultural trial, which is the selected company, and the agricultural trial and the mutual aid for not less than 6 months. Accordingly, the price increase was based on the Plaintiff’s independent decision making.

○ In the event of the Plaintiff during the period of the instant collaborative act alleged by the Defendant, the sector operating profit rate is average of 4%, and even if there were collusions by the Plaintiff, etc., it is not formally understood that such damage was incurred, and the Plaintiff et al., et al., as a major raw material, raised the price according to the fluctuation in the international price of wheat and seedling, most of which are dependent on imports, and rather did not increase the price by the collusion.

○ The former support system (referring to the system that supplies the original product at the ex-factory price prior to the increase of the ex-factory price during a period equal to the transaction value of the substitute island, etc. even if the ordinary price is increased) is used as a means of sales necessarily necessary for prompt exhaustion, etc. of the existing consumer price labelling products after the increase of the price, and is not used as a means of check for price increase of others.

(ii) the deviation and abuse of discretionary power;

Even if the plaintiff et al. agreed on the collaborative act of this case, the defendant's disposition of this case is erroneous in law of deviating from and abusing discretion due to the following defects.

○ In accordance with the manufacturing specifications, the instant products can be classified into sugars, gylled asbestos, gylled asbestos, and other goods. The instant products can be divided into market markets and directboards according to the distribution method. Despite the difference between the type and the actual market price according to the type, the Defendant recognized the entire product as related goods if the Plaintiff raised without specific grounds.

The Plaintiff, whose price negotiation power is weak, should be excluded from the law level of the product concerned, because the Plaintiff’s products supplied to large retailer, such as a marina or home fluor, and business products that are supplied to general consumers, are determined by individual negotiations without any impact on the instant collaborative act, and the price is determined by individual negotiations.

○ The Defendant’s act of price rise in 2003 and 2004 without presenting specific evidence as to the collaborative act has expired five-year disposal prescription, and the Plaintiff did not engage in the collaborative act in 2007, so it should be excluded from the period of violation.

B. Facts of recognition

1) Holding meetings of representatives, etc.

On the end of December 200 through January 2001, the representatives of the plaintiffs et al. formed a consensus on the necessity of the price increase if they divide a dialogue to the effect that if the agricultural ginseng increases the low price at the representative meeting held at the Rotten Seoul hotel in Gangnam-gu Seoul, then the other companies would raise the low price. In addition, on March 28, 2001, the council was held at the meeting of the council if the executive directors of the plaintiff et al. and the vice president of the plaintiff et al. were the regular meeting of executive officers. The participants were given a dialogue on the progress of the consultation between the agricultural trial and the government's price increase and the general rate of price increase before commencing the general meeting.

After that, on May 10, 2001, the agricultural trial reviewed the price increase from the beginning of 2001 to the press, and announced that the time and width of the increase are determined at the beginning of the next week, and all the remaining companies including the plaintiff also declared the price increase review on the same day.

2) On May 21, 2001, the agricultural trial, which is the price of the Do six times together, increased by 9.9% by average the 17 paper, 17 paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper paper.

From the above point to February 2, 2010, the plaintiff et al. determined the ex-factory price increase at a level similar to the ex-factory price increase in implementing the price increase in order for each company's products, such as the following table (units): among them, the ex-factory price of main products was determined at the same amount.

A person shall be appointed.

3) At the time of the exchange of information on price discount, the Plaintiff et al. exchanged specific information on price discount, such as the date of price discount, price discount, date of production of price discount products, and the period of support by the Gu, by telephone, facsimile, e-mail, etc. The exchange of information appears to have been made mainly before the agricultural trial notifies the transaction partner of the details of the price discount, and even after such notification, it appears to have used the exchanged price information in determining whether the price discount was the self-employed company’s price increase, width, etc.

(iv) exchange of regular management information, etc.

The officers in charge of market research of the Plaintiff et al. continuously exchanged various sensitive management information such as the current status of each company's products, sales goals, sales performance, business support measures for transaction values, sales promotion and public relations plans, new products delivery planning, internal organization, and change of executives, etc., in any way other than the exchange of the above price points. In addition, the above employees created the so-called "propon company" group, and exchanged each company's management information, etc. via telephone and e-mail from time to time.

【Fact-finding without dispute over the basis of recognition, entry in the evidence Nos. 1 through 179 (including the number of pages), and witness A. B’s testimony and the purport of the whole pleadings. Determination as to the Plaintiff’s assertion

1) As to the non-existence of agreement

A) In a case where, after a selection company with a high market share under an over-point market structure determines the price by unilaterally copying it after it has been determined by its own decision, these companies are likely to be deemed to have committed an unfair collaborative act. However, in a case where the selection company predicted that the latter company will set the price in accordance with the previous practice and the latter company would actually set the price in accordance with the advance company's pricing in accordance with the advance company's market situation (see, e.g., Supreme Court Decision 2000Du1386, May 28, 2002).

Food concurrent act refers to a case where only a small number of enterprisers exist, such as an over-point market (in a market structure), and one enterpriser actually engages in an independent act while predicting the reaction between different enterprisers in a market with high dependence and predictability. This is a concept different from an implied agreement, i.e., direct evidence, such as documents or testimony, which is not direct evidence, but indirect evidence) that can be proved by an agreement, and it does not constitute an agreement on an unfair collaborative act. In addition, it is not recognized as an agreement on an unfair collaborative act. However, for example, in a case where an enterpriser sets the same price without an agreement on an identical price in the past, if there is a power to enter into an agreement on an unfair collaborative act in the past, immediately after the direct exchange of opinions between the enterprisers, or in a case where an enterpriser has to enter into an agreement on an unfair collaborative act at the same time, it should be deemed that an indirect collaborative act constitutes an agreement on an unfair collaborative act, such as inventory and price of products, and information on an individual enterpriser.

B) In light of the above legal principles, when comprehensively considering the following circumstances, which can be known by the above facts and each of the above evidence, the plaintiff et al. who is a market-oriented market business operator in Korea, the plaintiff et al. predicteds that the plaintiff et al., including the plaintiff, would also increase the price when the plaintiff et al., a selected company increases the price in light of the market conditions such as previous practices, and actually agreed to increase the price in the manner that other companies including the plaintiff et al., such as the plaintiff et al. would like to do so in the manner that other companies would raise the price in the future, and in fact, other companies including the plaintiff et al. would like to do so in the manner that other companies like the plaintiff et al. would raise the price in the future six times from May 201 to February 201 (i.e., the plaintiff et al., assertion that the collaborative act in this case is an food concurrent act, but as seen below, there is sufficient indirect evidence to confirm the agreement.

(1) Characteristics of the market.

If the domestic market is based on the market (in-house market structure) in which a small number of business operators exist, the product has no difference in quality, and consumers are sensitive to the price and the price of the product is an important factor of competition. Accordingly, even if the product is a first-class business, it seems that the sales of the product are considerably reduced without any other company's aid.

(2) The appearance and shape of the price are identical.

As seen above, the Plaintiff et al. decided the average rate of increase in prices at a close range of six times from May 2001 to February 201, 201, and the average rate of increase in prices was similar to the original unit, and the ex-factory price of main items with a high market share was determined by the same amount as the original unit. However, in the case of the Plaintiff, the ex-factory price of main items was lower than that of other companies on May 2007 and February 2008, but instead, the price was adjusted similar to the average rate of increase in other companies by reducing the ex-factory price of main items, which was implemented in the past. Accordingly, if the Plaintiff et al. were to do so, the ex-factory price of the Plaintiff et al. shows a strong appearance.

The plaintiff asserted that there was a price increase in the plaintiff's own decision because it was in accordance with the plaintiff's independent decision-making since there was a price increase in the plaintiff's price, which was six months after the price increase, which was the selection company at the time of price increase in 2007. However, in light of the fact that the plaintiff did not express his/her intention to withdraw from the collaborative act of this case, which continued for the past several years against others, and that the other company's Gu support period (see evidence B, 118, 125, etc.) was insufficient to recognize the fact that the evidence submitted by the plaintiff was in accordance with the plaintiff's independent decision-making of this case. Thus, the above argument by the plaintiff is without merit (see Supreme Court Decision 2009Du4159, Apr. 14, 201).

③ The first instance court, which is the first instance company in the market, continued to increase the price in advance during the period of the collaborative act in this case, has continuously increased the price in advance, and other companies have also increased the price in the same manner.

Continuous meetings of the plaintiff et al.

As seen above, the Plaintiff et al. continuously maintained a meeting or contact through a meeting of the representative, a meeting of the council, and a meeting of the staff in charge of market research, which is a meeting of the staff in charge of market research, and formed a consensus on the necessity of price increase.

(5) Exchange of price information, etc.

The plaintiff et al. generally exchanged information on product status, business support plan, new product marketing plan, internal organization, and change of executive officers and employees as well as related information on price increase plans, etc., which belong to the company's trade secrets and correspond to the core elements of competition during the price increase period. In addition, information exchanged between the plaintiff et al. includes specific and detailed data such as price increase in total price and ex-factory price for products, and the period of support by the Gu.

The exchange of price information mainly appears to have been made before the company notifies the business partners of the company's price factors. After such notification, the actual effect of the exchange of information is to accord with the price of the competitor. Therefore, when the company, which knows the price of the competitor, the company, who knows the price of the competitor, the exchange of information is to utilize the price information exchanged as above when determining whether the company's price increases, the increase in the price, and the time of increase in the price. Moreover, the exchange of information by the plaintiff et al. is not temporarily conducted, but is made continuously and repeatedly after the meeting of the representative, as seen above, through the Council, the interview, and the meeting of amnestys, etc.

6) The plaintiff's reasonable cause, etc., shows a relatively high operating margin with a relatively high level of 1 and 2 main companies in the market. On the other hand, the plaintiff, 3 and 4 companies, and Yuuuart, both of which, in the case of the plaintiff, have a high operating profit ratio by realizing the scale of economy because the production and sales are more than 5-10 times if the plaintiff is equipped with the automatic equipment capable of mass production in the case of the plaintiff, and annual production and sales are more than other companies. In the case of the plaintiff, if the plaintiff is the first domestic company, the plaintiff is creating profits by successful reduction of the cost of know-how as the production company. On the other hand, the plaintiff's production and sales (OEM) is higher than those of other companies directly manufactured and sold, and it is not necessarily guaranteed that the plaintiff's sales profit is less than the above price change.

It seems that the price has not been changed to the same level.

(1) Utilization of the support system by the Gu.

① In general, it is difficult for the Gu to promptly reduce the inventory of the previous price or increase the sales margin of the customers through the support system that provides the consumers with the consumer price increased at the previous ex-factory price for a certain period of time. However, in the case of agricultural trial, if other companies do not raise the price even though the agricultural trial first increased the price, the Gu provided the Gu's support upon the request of large discount points or special agreement. As can be seen, if the agricultural trial conducted the Gu's support, there is no practical benefit from late withdrawal of other companies' price and there is no benefit from other companies' price increase, and the information about the period of support, etc. of the Gu's assistance, which is the starting point, was frequently exchanged between the plaintiffs, etc., and the agricultural trial increased the price on December 24, 2004, while raising the support period, the Gu's support period was finally raised until January 13, 2005, and the 3rd price increase was finally raised by the competitive business entity's means of promotion or extension by March 2005.

Therefore, the plaintiff's above assertion is without merit.

2) In full view of the provisions of Articles 6, 17, 22, 24-2, 28, 31-2, and 34-2 of the Act regarding the assertion of deviation from and abuse of discretionary power, the Fair Trade Commission has discretion to determine whether to impose a penalty surcharge on a violation of the Fair Trade Act, and if a penalty surcharge is imposed, the amount of the penalty surcharge should be determined in detail within a specific scope provided for in the Act and the Enforcement Decree of the Act. Thus, the Fair Trade Commission’s imposition of a penalty surcharge on a violator of the Act is a discretionary act. However, the fact that the imposition of a penalty surcharge is the basis for the imposition of a penalty surcharge in exercising the discretionary power, but if there is a reason that it violates the principle of proportionality, it shall be deemed illegal as abuse of discretionary power (see, e.g., Supreme Court Decisions 200Du1713, Sep. 24, 200; 206Du4226, Feb. 15, 2008).

In light of the above legal principles, the above-mentioned facts, and the following circumstances revealed by each of the above evidence, it is difficult to deem that the shower disposition was abused by the Defendant’s discretion.

① Although the Defendant considers the pertinent product, which serves as the basis for calculating the penalty surcharge, as “products whose ex-factory price has been increased as a result of the instant collaborative act,” there was no specific price comparison in addition to the average price increase rate for the entire price-oriented product except for main items, but the product price comparison is not easy if the type and items of the entire product are diverse, and the characteristics of the product are different from each other.

② Since the ex-factory price agreed by the Plaintiff et al. is the basis for the actual market price, products supplied to large distributors such as Empt are affected by the instant agreement.

③ In light of the aforementioned facts, the instant collaborative act ought to be deemed as one unfair collaborative act continued from May 2001 to February 2, 201, and there is insufficient evidence to deem that there was a part of the agreement interrupted during the pertinent collaborative act. As such, the statute of limitations for disposition has not yet expired.

④ In the calculation process of the instant penalty surcharge, the Defendant deemed that the instant agreement constitutes “an act of gross violation” and applied the imposition standard rate of the basic penalty surcharge relatively lower than 205). Moreover, in the case of the Plaintiff, etc., the Defendant reduced the 30% of the discretionary adjustment penalty surcharge to the Plaintiff, etc., as well as the Plaintiff and Yuuuuart, taking into account the fact that there were many cases where the operating profit was less than the amount during the period of the instant violation, 10% was reduced.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

The presiding judge and assistant judges;

Judges Gangseo-Appellee

Judge Shin Jae-hun

1) Switzerland Co., Ltd., Ltd., entering into the business if he had entered into the business on 1986, and started on 203.

2) If king is not a major product of Yuart, but an item corresponding to the main product of other companies.

3) 4) If the plaintiff's exhaustion in 2007 and 2008, the ex-factory price is lower than the ex-factory price of other companies, but has already been in force.

(Support for Promotion) was adjusted similar to the average rate of increase in other companies by reducing (Support for Promotion).

5) The public notice on the detailed criteria, etc. for the imposition of penalty surcharges before the amendment by a public notice of April 1, 2005 by the Fair Trade Commission is serious.

Although the standard rate for imposition of this weak violation was set at between 0.5 and 1.5%, it shall be revised from 0.5 to 3% after the above amendment.

In addition, Paragraph 2 of the Addenda to the Public Notice of the above Amendment was terminated before this Public Notice enters into force or after this Public Notice enters into force.

(2) If a penalty surcharge is imposed on an act for which the status of the violation continues, the previous public notice of the Fair Trade Commission

It was stipulated that "No. 2004-7, April 1, 2004 shall apply mutatis mutandis." However, Paragraph 2 of the Addenda to the above Amendment Notice shall apply to the process on December 31, 2007.

Pursuant to Article 2007-15 of the Notice of the Fair Trade Commission’s Act before this public notice enters into force, the time of the public notice No. 2007-15

Where a penalty surcharge is imposed on an act terminated before the commission, the previous public notice (Public notice No. 2004-7 of the Fair Trade Commission);

Along with the re-revision of April 1, 2004, it can apply the revised imposition standard rate for the whole collaborative act of this case.

was made.