[1] In a case where the Fair Trade Commission separately deliberated on whether to impose a corrective order or a penalty surcharge and a penalty surcharge for voluntary report on an unfair collaborative act are reduced or exempted, and then decided separately by separate review, whether the other party to the disposition is entitled to appeal both or separately against each disposition (affirmative), and in a case where a lawsuit is filed to seek revocation of a disposition such as a penalty surcharge and a disposition for revocation of a reduction or exemption, whether the benefit of lawsuit is recognized (affirmative in principle)

[2] Whether delegation to the Presidential Decree without directly stipulating the scope of voluntary reporters receiving benefits from the reduction of or exemption from the penalty surcharge, etc. under Article 22-2(3) of the Monopoly Regulation and Fair Trade Act violates the principle of prohibition of comprehensive delegation (negative)

[3] Whether Article 35(1)6 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act deviates from the scope of delegation under Article 22-2(3) of the Monopoly Regulation and Fair Trade Act, a parent company (negative)

[4] In a case where a penalty surcharge is aggravated pursuant to Article IV. 3. b(5) of the former Public Notice on the Imposition of Penalty Surcharge, etc., which states that a penalty surcharge may be aggravated by up to 10/100 on the ground that a non-registered executive officer directly participated in a collaborative act by imposing penalty surcharge on Gap corporation which committed an unfair collaborative act by the Fair Trade Commission, "if a director or a senior executive officer equivalent to the above or above director ( regardless of registration in the register) directly participated in a violation, the case holding that there was no

[1] Under Articles 21 and 22, the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides for the grounds for an order to correct and impose penalty surcharges on unfair collaborative acts (hereinafter “disposition, such as penalty surcharges”), and separately provides for the grounds for an application for reduction or exemption due to voluntary declarations, etc. under Article 22-2. Whether to recognize voluntary declarations shall be determined at the stage of determining whether the amount of penalty surcharges pursuant to the corrective measures prescribed by the Enforcement Decree of the Monopoly Regulation and Fair Trade Act and the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (hereinafter “Enforcement Decree of the Fair Trade Act”) is determined based on the establishment of the collaborative act, and the amount of penalty surcharges pursuant to the criteria for calculating the amount of penalty surcharges is determined based on separate requirements and procedures for voluntary declarations. Accordingly, the Fair Trade Commission should clearly distinguish the requirements for imposition of penalty surcharges, etc. and for voluntary declarations from those for a decision on a case where voluntary declarations are filed. The Enforcement Decree of the Fair Trade Act provides for separate review or separate resolution on the application of penalty surcharges, etc. upon application by voluntary reporters, and detailed procedures for exemption or exemption from the voluntary declarations.

A disposition, such as penalty surcharge, and a disposition of reduction or exemption, are separate separate dispositions that distinguish between the grounds, requirements, and procedures, and are distinct from the two dispositions, and legal nature is different. Therefore, a business operator is entitled to seek the cancellation of both dispositions.

Therefore, in a case where the Fair Trade Commission separately deliberated and resolved on whether to impose or exempt a penalty surcharge, and then separately decided on the reduction or exemption of a penalty surcharge, the two dispositions, such as a penalty surcharge, are established, and the two dispositions, such as a penalty surcharge, and the other party to the disposition, may object to each disposition together or separately. Therefore, even in a case where the Plaintiff, who is a business entity, files a lawsuit seeking the revocation of a reduction or exemption of a penalty surcharge, the benefit of lawsuit is recognized to seek the revocation of a reduction or exemption rejection disposition

[2] In light of the legislative purport, the form, contents, etc. of Article 22-2 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), the scope of “voluntary reporters or investigators (hereinafter “voluntary reporters, etc.”) who are eligible to receive reduction or exemption of penalty surcharges, etc.” can predict the outline of the practical standard that granting voluntary reporters, etc. benefits from the imposition of penalty surcharges, etc. would be set in the Enforcement Decree, focusing on cases where the suspension or prevention effect of unfair collaborative acts is high, and the matters prescribed by the Enforcement Decree can also be prepared by limiting the scope of voluntary reporters, etc. who are eligible to benefit from the reduction or exemption of penalty surcharges, etc., depending on the type of unfair collaborative acts and individual circumstances. Therefore, it cannot be deemed that delegation of the scope of voluntary reporters, etc. who receive benefit from the reduction or exemption of penalty surcharges, etc. under Article 22-2(3) of the Fair Trade Act, without directly setting the scope of voluntary reporters, etc., violates the principle of prohibition of delegation.

[3] Article 35(1)6 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (hereinafter “Enforcement Decree”) excludes mitigation of voluntary reporters, etc. in cases where only two business entities participate in collusion and where two or more years have passed since the date on which a first voluntary reporter or investigative partner (hereinafter “the first voluntary reporter, etc.”) filed a voluntary report. This constitutes “detailed matters concerning the scope of mitigation or exemption or reduction of, and the standard and degree of exemption” explicitly delegated to the Presidential Decree under Article 22-2(3) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”), as it concerns passive qualifications for which benefits from reduction or exemption are not available, and constitutes “detailed matters concerning the scope of mitigation or exemption or reduction of,” which are clearly delegated to the Presidential Decree. In addition, the contents of the Enforcement Decree cannot be deemed arbitrary, and rather, it is reasonable and reasonable in accordance with the purport of Article 22-2(3) of the Fair Trade Act, a parent corporation. Therefore, the Enforcement Decree cannot be deemed to deviate from the scope of delegation

[4] In a case where the Fair Trade Commission imposed penalty surcharges on Gap corporation which committed an unfair collaborative act, imposed penalty surcharges on non-registered executives pursuant to the public notice of detailed guidelines for imposition of penalty surcharges, etc. (amended by Notice No. 2012-6 of the Fair Trade Commission, Mar. 28, 2012) IV. b. (5) (hereinafter “public notice clause”), the case holding that, even if the Fair Trade Commission imposed penalty surcharges on the subject of the public notice clause on the basis of discretion to determine the contents of discretionary rules on the grounds for increase or decrease of penalty surcharges within the scope that does not go against laws and regulations, in order to expand the scope of the non-registered executives to non-registered executives, etc., “whether or not the public notice clause is listed” under the public notice clause to include a portion of “in addition to the persons registered as directors in the corporate register under the Commercial Act,” which is different from the general employees in the real situation of transaction or the scope of authority, if an executive is deemed to have a violation under the direct and similar nature of and reason for such violation.

[1] Article 22-2(1) and (3) (see current Article 22-2(4)) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 14137, Mar. 29, 2016); Articles 21 and 22 of the Monopoly Regulation and Fair Trade Act; Article 35(1), (3), and (4) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act / [2] Article 75 of the Constitution of the Republic of Korea; Article 22-2(3) of the Monopoly Regulation and Fair Trade Act / [3] Article 22-2(3) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 14137, Mar. 29, 2016); Article 35(1)6 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act / [4] Article 22-2(1) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 14137, Mar. 29, 2016)

[1] Supreme Court Decision 2016Du43282 Decided December 27, 2016 (Gong2017Sang, 242)

Tae Young Construction Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Su-seok et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Kang, Attorneys Adjust-chul et al., Counsel for defendant)

Seoul High Court Decision 2014Nu65891 decided January 28, 2016

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Profits of lawsuits related to reduction, exemption or dismissal and whether such actions are illegal;

A. Whether there is a benefit in a lawsuit seeking revocation of a reduction or exemption rejection disposition separate from the imposition of a penalty surcharge (ground of appeal No. 1)

(1) Article 21 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides that when there is an act violating any provision prohibiting unfair collaborative acts, the Fair Trade Commission may order the enterpriser who has committed the act of violation to discontinue the act of violation, to publish the fact that the enterpriser has received a corrective order, or to take other measures necessary for correction. In such a case, the main sentence of Article 22 of the Act provides that a penalty surcharge may be imposed within the extent not exceeding the amount obtained by multiplying the turnover determined by the Presidential Decree by 10/

Meanwhile, Article 22-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 14137, Mar. 29, 2016) provides for reduction, exemption, etc. of persons who voluntarily reported, etc. of unfair collaborative acts. Article 22-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 14137, Mar. 29, 2016) provides that where an enterpriser who has violated the prohibition provision of unfair collaborative acts files a voluntary report on the fact of unfair collaborative acts or cooperates in an investigation by means of providing evidence, etc., corrective measures or penalty surcharge may be mitigated or exempted, and Article 22-2 of the former Monopoly Regulation and Fair Trade Act provides for detailed matters concerning the scope of persons who have been mitigated or exempted and the standards for mitigation or exemption and the degree thereof, etc.

Article 35(1) of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 27529, Sep. 29, 2016) (amended by Presidential Decree No. 27529, Sept. 29, 2016) provides that a person who filed a report or cooperates in an investigation before the commencement of an investigation into an unfair collaborative act, and satisfies certain requirements, a penalty surcharge and corrective measures may be reduced or exempted, if the person who filed a voluntary report or cooperates in an investigation after the commencement of the investigation into the Fair Trade Commission. Article 35(1) of the Enforcement Decree of the Fair Trade Act provides that a person who filed a voluntary report or cooperates in an investigation into an unfair collaborative act may separate or separately decide the relevant case to prevent disclosure of his/her identity. Furthermore, Article 35(4) of the Enforcement Decree of the Fair Trade Act provides for the operation of the former system for corrective measures, etc. against voluntary reporters, etc. (amended by Presidential Decree No. 26814, Jan. 2, 2015).

As can be seen, Articles 21 and 22 of the Fair Trade Act provide for the grounds for a corrective order and a disposition imposing penalty surcharges on unfair collaborative acts (hereinafter collectively referred to as “disposition, such as penalty surcharges”) and separate provisions from Article 22-2, which provide for the grounds for a disposition related to voluntary reporting. Whether to grant reduction or exemption or exemption is determined at the stage of determining whether the details of corrective measures and the amount of penalty surcharges pursuant to the criteria for calculation of penalty surcharges under the Decree on the premise of the establishment of the collaborative act, and whether the amount of penalty surcharges is determined in conformity with the criteria for calculation of penalty surcharges, are clearly distinguishable from those of the requirements and procedures for voluntary reporting. Accordingly, the Fair Trade Commission shall deliberate and decide on both the requirements for imposition of penalty surcharges and the requirements for voluntary reporting. The Enforcement Decree of the Fair Trade Act allows a person who has filed a voluntary report to separately deliberate or separately decide on the application for reduction or exemption at the request of a person who has filed a voluntary report, and the detailed procedures for operation thereof are formulated. Moreover, the imposition or exemption of voluntary reporting is distinct from the legal nature of penalty surcharges.

A disposition, such as penalty surcharge, and a disposition of reduction or exemption, are separate separate dispositions that distinguish the relevant provisions, requirements, and procedures as above, and are distinct from those of the above two dispositions, and have different legal characteristics. Therefore, a business operator shall be deemed to have practical benefits to seek revocation of the above two dispositions.

Therefore, in a case where the Fair Trade Commission separately deliberated and resolved on whether to impose or exempt a penalty surcharge, and then separately decided on the reduction or exemption of a penalty surcharge, it should, in principle, be deemed that two dispositions, such as a penalty surcharge, and a disposition of reduction or exemption or rejection of a penalty surcharge, respectively, have been established, and the other party to the disposition may appeal each disposition together or separately. Therefore, even in a case where the Plaintiff, who is a business entity, files a lawsuit seeking the revocation of a disposition of reduction or exemption or rejection of a penalty surcharge, barring special circumstances,

(2) The reasoning of the lower judgment reveals the following facts.

(A) The bid for the construction of the facilities for the Yangyang Ginseng Water Supply Restoration Center (hereinafter “instant construction”) was conducted by the method of designing and constructing the successful bidder by reflecting 50% design score and 50% price score.

(B) On September 209, the Plaintiff and the Copi global corporation (hereinafter “Copi global”) agreed that the bid price related to the instant construction project shall be 94.8% of the scheduled price (Plaintiff) and 94.78% (Copied) (hereinafter “instant collaborative act”). The Plaintiff and Copi global submitted a tender document on September 29, 2009, thereby conducting the instant collaborative act, and as a result, the Plaintiff Copi was determined as a successful bidder.

(C) On October 19, 201, the Companion Global applied for reduction or exemption by submitting first evidence, such as a written statement and bid price, to the Defendant regarding the instant collaborative act.

(D) On May 19, 2014, the Plaintiff, upon filing an application for reduction or exemption, submitted evidence that the Plaintiff committed the instant collaborative act through consultation with the Plaintiff and Culul Global executives.

(E) On September 11, 2014, on the ground that the instant collaborative act constitutes an unfair collaborative act under Article 19(1)8 of the Fair Trade Act, the Defendant issued a corrective order listed in attached Table 1 and an order for the payment of a penalty surcharge of KRW 3.12 million (hereinafter “instant disposition for imposition of a penalty surcharge”) against the Plaintiff on the ground that the instant collaborative act constituted an unfair collaborative act under Article 19(1)8 of the Fair Trade Act, and separately, issued a decision to dismiss the Plaintiff’s application for reduction or exemption pursuant to Article 35(1)6 of the Enforcement Decree of the Fair Trade Act (hereinafter “instant disposition for reduction or exemption”).

(3) In light of the legal principles as seen earlier, the interest in the lawsuit seeking the revocation of the instant disposition dismissing the reduction or exemption exemption period is recognized. Therefore, the lower court should not dismiss the lawsuit on the part seeking the revocation of the instant disposition dismissing the reduction or exemption period, and should have determined the merits as to whether it

Nevertheless, the lower court determined otherwise that there was no benefit in the lawsuit to seek revocation of the instant disposition to revoke the instant disposition to impose penalty surcharges, and that there was no benefit in the lawsuit. In so doing, the lower court erred by misapprehending the legal doctrine on the benefit in protecting rights.

B. Whether it is unlawful that a failure to reduce or exempt a person engaged in investigation cooperation with the first priority is illegal (ground of appeal No. 2)

According to Article 35 (1) 2 (a) of the Enforcement Decree of the Fair Trade Act, in order to become the first-class investigative partner, the Fair Trade Commission shall meet the requirements that the applicant cooperates in the investigation without obtaining information on the unfair collaborative act or without obtaining sufficient evidence necessary for proving that the applicant is an unfair collaborative act.

In light of the fact that the contents of the instant collaborative act, such as the process and method of determining the bid price, etc., are specifically stated in the evidence submitted by the Coul Global, the lower court determined that the Plaintiff did not constitute the first-class investigator for investigation, on the ground that the Defendant had already obtained information on the instant collaborative act before the Plaintiff’s investigation cooperation and secured sufficient evidence necessary for proving

The lower court’s aforementioned determination is justifiable in accordance with the Enforcement Decree of the Fair Trade Act, and did not err by misapprehending the legal doctrine on the requirements of the first investigative partner.

C. Whether it is unlawful that a failure to reduce or exempt a person engaged in investigation cooperation with the second priority is illegal (ground of appeal Nos. 3 and 4)

(1) Whether Article 22-2(3) of the Fair Trade Act and Article 35(1)6 of the Enforcement Decree of the Fair Trade Act are unconstitutional or unlawful

(A) A delegation order may be issued when there exists an individual delegation that sets the specific scope in the law or upper level order. The specific scope of delegation varies depending on the type and nature of the subject matter to be regulated, and thus, uniform standards cannot be set. However, at least, in a case where the basic matters of the contents and scope to be stipulated in the delegation order are specifically stipulated in the pertinent law or upper level law, any person may predict the outline of the contents to be stipulated in the delegation order from the pertinent law or upper level law. In this case, the existence of predictability shall not be determined with only one delegation provision, but shall be determined with an organic and systematic comprehensive consideration of the overall system, purpose and purpose of the delegation provision, the form and content of the delegation clause, and the relevant laws and regulations, depending on the nature of the subject matter to regulation (see Supreme Court Decision 2003Du7606, Jul. 22, 2004, etc.).

Matters delegated to the Presidential Decree of Article 22-2(3) of the Fair Trade Act refers to "detailed matters concerning the scope of persons who have been mitigated or exempted, the standards for mitigation or exemption, etc., and accordingly, Article 35(1)6 of the Enforcement Decree of the Fair Trade Act (hereinafter "Enforcement Decree of this case") provides that "where two enterprisers participate in and cooperate in unfair collaborative acts," and "where a person falling under subparagraph 1 or 2 is a business operator who has reported or cooperated in an investigation after two years from the date on which he/she voluntarily reported or cooperated in an investigation," and "where a person falling under subparagraph 1 or 2 is a business operator who has filed a voluntary report or cooperation in an investigation," (b) [Article 22-2(3)] shall not be mitigated

(B) The purpose of the system of reduction or exemption of penalty surcharges, etc. for voluntary reporters or investigators under Article 22-2 of the Fair Trade Act (hereinafter “voluntary reporters, etc.”) is to strengthen trust among participating enterprisers by granting benefits from voluntary investigation to those participating in an unfair collaborative act by providing them with information on the provision of evidentiary materials (see, e.g., Supreme Court Decision 2009Du15043, Jan. 14, 2010). The details of “the scope of mitigation or exemption or exemption, standards for reduction or exemption, degree of such reduction or exemption, etc.” under Article 22-2(3) of the Fair Trade Act include not only active qualifications for receiving benefits such as penalty surcharges, but also passive qualifications for receiving such benefits. Since the type of unfair collaborative act is practically diverse, it is necessary to regulate them according to changing economic situation, it is necessary to determine the detailed contents of the scope of voluntary reporters, etc. to the extent that it is necessary for 201Hun-Ba-Ba 16, 2016.

If the legislative purport of Article 22-2 of the Fair Trade Act, the form and content of the provision, etc. are systematically and systematically integrated, “the scope of voluntary reporters, etc. eligible for reduction or exemption of penalty surcharges, etc.” can be predicted that granting benefits to voluntary reporters, etc., rather than simply imposing penalty surcharges, etc., would be determined by the Enforcement Decree, focusing on cases where the suspension or prevention effect of unfair collaborative acts is larger, and the matters prescribed by the Enforcement Decree may be prepared by limiting the scope of voluntary reporters, etc. eligible for benefits from reduction or exemption of penalty surcharges, etc., depending on the type of unfair collaborative acts and individual circumstances. Therefore, delegation to the Presidential Decree does not violate the principle of prohibition of comprehensive delegation.

(C) The Enforcement Decree of the instant case excludes mitigation for persons who have filed a second voluntary report, etc., in cases where only two business entities participated in collusion and where two or more years have elapsed from the date on which the first voluntary report, etc. was filed. This pertains to passive qualifications that are not entitled to benefits from reduction or exemption and constitutes “the details of the scope of mitigation or exemption or exemption” explicitly delegated to the Presidential Decree under Article 22-2(3) of the Fair Trade Act. In addition, the contents of the Enforcement Decree of the instant case cannot be deemed as arbitrary, and rather, are consistent with the purport of Article 22-2(3) of the Fair Trade Act, which is the mother corporation, and deemed reasonable. Therefore, the Enforcement Decree of the instant case cannot be deemed as deviating from the scope of delegation

In so doing, the lower court did not err by misapprehending the legal doctrine on the prohibition of comprehensive delegation under the Constitution or the limitation of delegated legislation, contrary to what is alleged in the grounds of appeal.

(2) Whether the Plaintiff could not benefit from reduction because it is subject to the Enforcement Decree of the instant case

The Enforcement Decree of the instant case was newly enacted by Presidential Decree No. 23864 on June 19, 2012, and Article 2 of the Addenda of the said Enforcement Decree (hereinafter “the Addenda of the instant case”) provides that the Enforcement Decree of the instant case shall apply to cases where a voluntary declaration or cooperation is made after the enforcement of the said Enforcement Decree, from the time when the said voluntary declaration or cooperation is

In light of the language and legislative intent of the Addenda of this case, the lower court determined that the enforcement decree of this case was not applied and the penalty surcharge cannot be mitigated in accordance with the Addenda of this case, since the Plaintiff began to cooperate in the investigation after February 24, 2014, not the first reporter, etc., but the relevant junior reporter, etc., and the Plaintiff began to cooperate in the investigation.

The above determination by the court below is just in accordance with the Addenda of this case, and it did not err by misapprehending the legal principles on the Addenda of this case, as alleged in the grounds of appeal.

D. Whether the revocation of the reduction or exemption rejection of this case is dismissed

The lower court’s dismissal of the lawsuit seeking revocation of the instant disposition of reduction or exemption was erroneous. The lower court should have dismissed the part of the claim for revocation of the instant disposition of reduction or exemption on the same ground as having judged that the Plaintiff failed to meet the requirements for reduction or exemption as seen above with respect to the illegality of the instant disposition of imposition of penalty surcharge. However, as to this part, the Plaintiff’s appeal was only filed against the Plaintiff, the lower court cannot be deemed to have rendered a disadvantageous dismissal judgment against the Plaintiff in light of the principle of prohibition of disadvantageous change.

2. Whether the imposition of penalty surcharge in this case is unlawful (ground of appeal Nos. 5 and 8)

(a) The gravity of any violation caused by an unfair collaborative act shall be determined by comprehensively taking into account the degree of undermining competition order caused by the violation, influence and ripple effect on the market, degree of damage to the consumer and enterprisers concerned, whether to acquire unjust enrichment, etc.;

In full view of the provisions of Articles 6 and 22 of the Fair Trade Act, the Fair Trade Commission’s discretionary discretion to determine whether to impose penalty surcharges on violations of the Fair Trade Act and, if imposing penalty surcharges, the amount of penalty surcharges within a certain extent prescribed by the Enforcement Decree of the Fair Trade Act. Thus, the Fair Trade Commission’s imposition of penalty surcharges on violators of the Act is discretionary action. However, if there is a misunderstanding of the fact that serves as the basis for imposing penalty surcharges while exercising such discretion, or if there is a reason contrary to the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power (see, e.g., Supreme Court Decision 2009Du1505, Sept. 8,

According to Article 55-3(1)1 of the Fair Trade Act, the Fair Trade Commission shall determine a penalty surcharge in consideration of the details and degree of the violation, etc., and Article 61(1) and [Attachment Table 2] 2(c) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 23475, Dec. 30, 201; hereinafter “former Enforcement Decree of the Fair Trade Act”) upon delegation of Article 5-3(3) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Mar. 21, 2012) provides that the Fair Trade Commission shall adjust the penalty surcharge in accordance with the criteria determined and publicly announced by the Fair Trade Commission in consideration of the following: (a) the content and degree of the violation, etc. of Article 55-3(1) of the Fair Trade Act (amended by Act No. 23475, Dec. 30, 201)

In addition, attached Table 2, Item (c) and subparagraph 3 of attached Table 2 of the former Enforcement Decree of the Fair Trade Act (amended by Act No. 2012-6 of March 28, 2012), IV.3 (b)(5) of the former Public Notice on the Imposition, etc. of Penalty Surcharges (amended by Notice No. 2012-6 of the Fair Trade Commission of March 28, 2012) (hereinafter “instant Public Notice Clause”) provides that “Where a director or a senior executive officer corresponding to the above or above-ranking (no registration in the register is made), directly involved in a violation, a penalty surcharge of up to 10/10 may be aggravated.” Of them, “(no registration in the register is made)” is added after the amendment by the Fair Trade Commission Notice No. 2007-15 of December 31, 2007. Meanwhile, “executive” under Article 2 subparag. 5 of the Fair Trade Act is defined as a “general trade employee, such as a director, representative, general partner, or other equivalent person.”

In light of the aforementioned forms and contents, the instant notice provision is a discretionary rule, namely, the administrative agency’s internal rules on administrative affairs, which are established based on the exercise of discretionary authority regarding the calculation of penalty surcharges and the imposition thereof, and setting the standards for the calculation and imposition of penalty surcharges belongs to the administrative agency’s discretion. Thus, insofar as it is not deemed that the standards are inconsistent with the Constitution or laws or that the standards are not objectively reasonable, and thus, an administrative agency’s intent should be respected as far as possible, unless it is deemed that it abused discretion (see, e.g., Supreme Court Decision 2011Du28783, Nov

B. In the instant case, the Defendant’s aggravation of penalty surcharges by applying the instant notification provision to non-registered officers other than those registered in the corporate register as directors under the Commercial Act constitutes a deviation or abuse of discretionary power.

The Defendant has discretion to determine the contents of discretionary rules regarding the grounds for increase, exemption, etc. of penalty surcharges within the scope not contrary to the statutes. The Defendant, based on such discretion, added the part of the instant notification provision to expand the subject matter of the instant notification provision to directors other than those registered in the corporate register under the Commercial Act, and applied the instant notification provision to non-registered executives thereafter.

Furthermore, even if a non-registered executive officer is in the reality of transaction, there are differences in the scope of decision-making or business execution authority with general employees. If such non-registered executive officer may be deemed to have led, planned, or directly involved in an offense beyond the level of indirectly participating in the act of violation, such as not simply prohibiting such act of violation, it constitutes a situation where the evaluation of “the intent, nature, and circumstances of the offense” that affect “the details and degree of the offense” under the Fair Trade Act, i.e., the reason for calculating the penalty surcharge under the Fair Trade Act

In addition to the above circumstances, considering that Article 2 subparag. 5 of the Fair Trade Act does not limit the scope of directors under the Commercial Act, the increase of penalty surcharges by up to 10/100 does not coincide with the Constitution and the Fair Trade Act and subordinate statutes, or is considerably unreasonable without objective rationality, on the ground that an executive officer of an offense was directly involved in a violation.

Therefore, even if the Defendant was directly involved in the act of violation, even if the penalty surcharge was aggravated on the ground that the non-registered officer was subject to the notification provision of this case, barring special circumstances such as that the actual status of the non-registered officer is the same as that of the general employee, it cannot be deemed as unlawful on the ground that it immediately deviates

C. In light of the fact that the instant collaborative act was committed in a large scale construction project whose contract price amounts to 43 billion won or less to the extent that it is clear that competition-restricting effect was reduced, and that there was a concern that the Plaintiff would have acquired unjust profits, the lower court determined that it was justifiable for the Defendant to have committed a very serious violation. In addition, the lower court determined that the Defendant did not err by abusing discretion, such as violating the principle of proportionality and equality, inasmuch as the Defendant directly participated in the instant collaborative act, such as ① Nonparty 1’s executive director, who is the Plaintiff’s non-registered executive officer, directly contact with the officer in charge of the Koul Global, etc., it cannot be deemed unfair to have aggravated the Defendant’s penalty for this reason; ② the Defendant partially mitigated the penalty surcharge considering the Plaintiff’s net income for the pertinent business year 2013, ② the Defendant’s act of forming a joint contractor, and ③ it is difficult to deem that the reduction of the penalty surcharge due to the difficulty of construction games has been settled

D. According to the records, Nonparty 1’s managing director, as the head of the environmental business team at the time of the instant bidding. Accordingly, the lower court’s determination that there was no illegality in calculating the penalty surcharge, including the aggravated penalty surcharge, on the ground that Nonparty 1, the Plaintiff’s non-registered executive officer, was directly involved in the instant collaborative act, was justifiable in accordance with the foregoing legal doctrine and did not err by misapprehending the legal doctrine on deviation from and abuse of discretion in calculating the penalty surcharge, contrary to what is alleged in the grounds of appeal

3. 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 Park Poe-young (Presiding Justice)