The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

The essence of Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is that “unfair collaborative acts” prohibited by Article 19(1) of the Fair Trade Act include not only explicit agreements but also implied agreements as “agreement on acts that unfairly restrict competition.”

Therefore, it cannot be deemed that there was an agreement as a matter of course on the ground that there was an appearance consistent with the existence of “unfair collaborative act” listed in each subparagraph of the above provision, and there should be proof of the circumstances to recognize the reciprocity of communication between the business operators.

In addition, the burden of proof is against the defendant who orders corrective measures, etc. on the ground of such agreement.

(see, e.g., Supreme Court Decision 2012Du17421, Nov. 28, 2013). Meanwhile, even if a competitor agreed to engage in an unfair collaborative act in an over-point market, circumstances to deem that a business entity participated in such an agreement are limited, whereas the business entity independently acted to maximize its own interest according to the market conditions.

In a case where the circumstance to deem that a person engaged in an act that is generally incompatible with a competitor or a competitor was engaged in an act that is generally incompatible with the competitor, such as continuing to exist for a considerable period, etc., it is difficult to deem that there was a communication with the competitor,

(See Supreme Court Decision 201Du23085 Decided May 29, 2014. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning by comprehensively taking account of the adopted evidence. The lower court determined that the companies (i) other than the Plaintiff, e.g., Eskex Co., Ltd. (hereinafter referred to as “GSkex”), GSkex Co., Ltd. (hereinafter referred to as “GSkex”), and Hyundai Daily Bank Co., Ltd. (hereinafter referred to as “regular three companies”), and added the Plaintiff.