National Credit Card Co., Ltd., a lawsuit taking over the merged National Credit Card Co., Ltd. (Law Firm Haok, Attorneys Jeon Young-young et al., Counsel for defendant

Fair Trade Commission (Law Firm Han, Attorney Jeon Soo-soo, Counsel for defendant-appellant)

on March 4, 2004

1. The Defendant’s revocation of the part of the corrective measures and penalty surcharge payment order on May 17, 2002, which the Plaintiff rendered against the Plaintiff by resolution, as indicated in the separate sheet.

2. The plaintiff's remaining claims are dismissed.

3. Two minutes of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The defendant's corrective measures and penalty surcharge payment order on May 17, 2002 issued by the resolution of May 17, 2002 against the plaintiff shall be revoked.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in each entry of Gap evidence 8-2, Gap evidence 9-1, 9-2.

A. The Plaintiff, a national credit card company (hereinafter “National Card”), Samsung Card Co., Ltd. (hereinafter “Tsung Card”), El Branch Card Co., Ltd. (hereinafter “EL branch card”), foreign exchange credit card company (hereinafter “foreign exchange card”), and the above four companies including the National Card Co., Ltd. (hereinafter “the card four companies”) are companies running each credit card business and businesses under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “the Act”).

B. The domestic credit card business market is composed of seven full-time card companies as of the end of December, 2001 and 19 bank concurrent credit card companies, together with 26 credit card companies.

Table 1> Status of Credit Card Business Operators (based on the end of December 2001)

7 cooperative banks, including 12 member banks EL cards, Samsung Card Co., Ltd., Special Credit Card Companies of Non-bank Credit Card Companies in the main sentence, Non-bank Credit Card Companies, Non-bank Credit Card Companies, People (former Housing), No. 1, Seoul, Daegu, Busan, 1, Han-U.S., Han-U., Han-U.S., Samsung-U., Samsung Card Co., Ltd., Samsungyang-U., Samsungyang National Card Co., Ltd., Hanyang-U., Agricultural Cooperatives (former Livestock Cooperatives), Suhyup (Gu Livestock Cooperatives), Supup, Peace, peace Note 2), and Ku-U.S., 5 member banks and 7 member banks, such as Choyang-U.S., Gwangju, Jeonbuk-gu, Jeonju, Jeju, and Han-U.S. (Gu Housing, Gu Housing, and Dongnam).

Note 1) Hyundai Capital Group received the Multilateral Card which was the treatment department company on October 2001 and changed it into a modern card.

2) As our credit card company (a merger between the Peace Bank and the light bank's credit card business sector) starts business from February 2002, the current full-time credit card company is eight companies as it starts business from February 2002.

* A National Bank, a Han Bank, the Hanmi Bank, the Nonghyup Federation, the NAF Bank, and the Cho Jae-Hy Bank, etc. have taken over the credit card business sector of the merged bank through merger, but the credit card business sector was not fully integrated and operated as a separate dwelling.

On the other hand, the market share of each card company in 2001 is the same as the attached Table 2> The total market share of 4 card was 59.8% in 197, such as the attached Table 3> but it was 69.79% as of the end of 2001.

Table 2> Market share status of Table 2>

(based on amounts used in 2001, per unit: 00 million won)

본문내 포함된 표 ？ 비씨 주) 엘지 삼성 국민 주) 외환 주) 현대 동양 계 이용금액 141,420 108,007 102,647 80,620 44,252 2,557 1,175 480,679 점유율(%) 29.42 22.47 21.35 16.77 9.20 0.54 0.25 100

state) Non-Cock cards include records of member banks, national cards, foreign exchange cards include records of member banks.

Table 3> Change in market share in Table 3>

(Standard, Unit: %) %

B. On July 14, 1997, 198, 14.7.4 14.7 0.5 14.4 14.4 1998 13.4 14.6 14.5 1998, 1998, 15.4 15.4 15.4 12.6 0.6 10, 2000 3.03 193.0 18.4 18.4 20, 2000 on March 18, 18, 201, 2009

* Visc cards shall include members bank records, national cards, foreign exchange cards shall include bank records.

C. Four card holders raised the rate of cash service commission from February 1, 1998 to March 2, 1998, the rate of installment commission from January 5, 1998 to February 10, 198 (hereinafter “the rate of installment commission”) and the rate of overdue interest from January 15, 1998 to March 2, 198 as follows. Each increase is the same as the attached Table 4>

Table 4> Increaseds, including Table 4> Fee rate

(unit: %)

Note 1) The overdue interest rate ratio of the voting company's name in the main sentence of this Section 1) the original increase on the initial date of the original increase on October 25, 1998, L.S. 12 through 15 16 through 35 shares on January 25, 198, Samsung 25 on February 1, 298, 198.

Note 1) The Cash Service Fee Rate is the average interest rate converted on a yearly basis, and there is a little difference in the calculation standards for each company (as a result of the data written by the National Card in August 1998, it is written in LA 29.95%, Samsung 29.48%, the citizen 29.30%, the citizen 29.30%, and foreign exchange 29.44%)

2) Not less than two months in arrears (one month shall be 32%)

D. As to this, the Defendant: (a) as of May 17, 2002, No. 2002-098, at a similar rate at a time similar to four card companies, raised the cash service fee rate, installment commission rate, and overdue interest rate, and the appearance of the act is identical; (b) as to this, the card 4 company had the record of unfair collaborative acts; and (c) despite the substantial difference in the procurement interest rate, the above increase can be presumed to be a collaborative act under Article 19(5) of the Act; (d) deeming that the above increase is an act of practically restricting competition by reducing or extinguishing competition between business entities in the domestic credit card business market, which is a store market, and thus, (e) applying Articles 21 and 22 of the Act, the Defendant ordered corrective measures and payment of penalty surcharge as stated in the attached Form (hereinafter “instant disposition”).

E. On October 1, 2003, the Plaintiff merged the national card and took over the instant litigation procedure.

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in accordance with the above disposition grounds and relevant Acts and subordinate statutes, and the plaintiff asserts that the disposition of this case is unlawful on the following grounds.

(1) In order to be presumed as an unfair collaborative act pursuant to Article 19(5) of the Act, the act of raising the instant rate by card 4 company does not meet the above two requirements for the following reasons. Thus, it cannot be presumed as an unfair collaborative act.

㈎ 〈표4〉에서 보는 바와 같이 카드 4사의 현금서비스수수료율에 관한 인상폭은 4.5%~6.15%, 인상 후의 요율은 28.99%~30%로 카드 4사가 모두 다르고, 연체이자율에 관한 인상폭도 4%~5%로 1%의 차이가 있고, 오히려 인상 전 동일하였던 요율이 인상 후에는 34%~35%로 차이를 보이기까지 하고 있으며, 더욱이 원고의 경우 1%의 현금서비스수수료율 인하는 연간 약 203억원의 수지 감소를 가져오는 것으로 그 차이는 상당히 의미 있는 것이라 할 것이고, 이 사건 요율의 인상시기 역시 현금서비스수수료율의 경우 약 1개월, 할부수수료율의 경우 36일, 연체이자율의 경우 46일로 당시 IMF구제금융에 따른 경제위기로 인하여 이자율이 급변하는 상황에서 1개월 이상의 매우 큰 차이가 있으며, 원고 등의 무이자할부서비스 기간이 서로 달라 수수료율 자체만 가지고 판단할 수 없는 것이어서 결국 이 사건 요율 변경에 있어서 ‘행위가 외형상 일치’한다고 볼 수 없고, 또한 카드 4사 이외에도 동종업종에 속하는 동양카드 주식회사와 다이너스티 주식회사도 같은 해 1월 초 할부수수료율을 4%씩 인상하여 카드 4사와 마찬가지로 연 16%~19%로 인상하였고, 비씨카드 주식회사의 회원은행 모두 할부수수료율을 연 12%~14.5%에서 연 15%~19%로 최고 4.5% 인상하였으며, 또 유사업종에 속하는 백화점 업계도 백화점 카드사용에 따른 할부수수료율을 같은 해 1월 15%에서 19%로 인상하는 등 동종 또는 유사업종에 속하는 모든 업계가 거의 동일한 시기에 거의 동일한 비율만큼 수수료율을 인상하고 있어 유독 원고 등의 수수료율 인상행위만을 특별히 ‘행위가 외형상 일치’한다고 볼 수 없다.

㈏ 당시 신용카드업 시장은 〈표1〉과 같이 시장참여자가 20여 개(7개의 전업카드사와 19개의 은행계 겸영카드사)이고 〈표2〉 및 〈표3〉과 같이 시장점유율이 분산되어 있었을 뿐만 아니라 삼성카드와 엘지카드 같은 기업계 카드사들을 비롯한 카드사들이 시장을 차지하기 위해 치열한 경쟁을 하던 완전경쟁시장이었으며, 가격탄력성이 매우 낮아 시장점유율 1위 사업자인 비씨카드를 제외한 카드 4사의 시장점유율이 당시 58.9%에 불과하여 이 사건 요율 인상 정도만으로는 신용카드업시장의 경쟁에 영향을 미칠 수 없고, 특히 법 제19조 제5항 에 의한 부당공동행위로 추정하는 경우에는 과점시장에서 시장점유율 절대다수를 보유하고 있는 사업자들에 의한 행위의 외형상 일치가 있는 경우에 한하여 실질적 경쟁제한성이 있다고 보아야 할 것이며, 또한 현금서비스는 제2금융권과 같은 시장에 속하고, 할부서비스는 할부금융사와 같은 시장에서 경쟁하는 것이므로 관련시장을 세분하여야 할 것이지 카드시장이라는 단일시장을 관련시장으로 상정할 것이 아닐 뿐만 아니라, 카드시장을 관련시장으로 보더라도 신용카드 이용자의 카드선택은 현금서비스수수료율 등과 같은 가격요소가 아니라 개별 신용카드의 브랜드 이미지, 제휴서비스의 정도, 적극적인 마케팅 활동 등의 요소에 의하여 결정되므로 가사 카드 4사의 공동행위가 있었다고 하더라도 ‘경쟁을 실질적으로 제한’하는 행위라고 할 수 없다.

㈐ 한편, 카드 4사의 이 사건 수수료율 인상행위가 법 제19조 제5항 , 제1항 에 위반되는 행위가 되기 위해서는 피고가 문제삼은 카드 4사의 현금서비스수수료율, 할부수수료율, 연체이자율이 법 제19조 제1항 제1호 의 “가격”에 해당되어야 할 것인데, 가격이란 “상품 또는 용역에 대한 대가”를 의미한다고 해석되는바, 연체이자율은 현금서비스수수료율이나 할부수수료율과 달리 소비자들이 신용카드 사업자로부터 제공받는 신용서비스에 대한 대가로서 지급하여야 하는 금전의 의미를 갖는 것이 아니라 금전채무불이행에 대하여 지급하는 손해배상으로서 일종의 지연손해금에 해당하는 것이어서 결국 연체이자율은 법 소정의 “가격”에 해당하지 않으므로 이를 전제로 카드 4사의 연체이자율 인상행위가 법 제19조 제5항 , 제1항 에 위반되는 부당한 공동행위에 해당한다고 할 수 없다.

D. The Plaintiff’s act of raising the instant rate was presumed to be an unfair collaborative act, in light of the following circumstances, even if the Plaintiff’s act of raising the instant rate was presumed to be an unfair collaborative act, this presumption is destroyed because, in the situation where the instability in the financial market is accelerated due to the occurrence of an occurrence of the IMF remedy financial situation, there is a reasonable business judgment for survival, and since 4 card companies agreed to increase the rate of this case,

㈎ IMF구제금융 사태를 기점으로 삼성카드, 엘지카드 등의 기업계 전업카드사는 공격적 마케팅을 더욱 확대하는 이른바 ‘실적위주’의 영업정책을 택하였고, 그와 반대로 원고는 안정적 수익성 제고에 초점을 맞추는 보수적인 영업정책을 택하는 등 기본적인 영업정책을 달리하였기 때문에 담합이 가능한 시장의 상황이 아니었다. 또한 원고의 내부문건에서 타사 현황을 기재하고 있는 것도 위와 같은 보수적인 영업방식에서 비롯된 것일 뿐, 합의를 추정하는 자료로 사용될 수는 없다.

㈏ 원고가 이 사건 행위 기간(1998. 2. 1.~1998. 3. 2.) 동안 현금서비스 이자율을 5~6%의 인상수준으로 책정한 것은 회사채 발행 또는 금융기관으로부터 차입을 통해 자금을 마련하는 비용 즉, 조달금리의 인상폭을 반영할 수밖에 없는 신용카드사업의 수익구조에 기초한 것이고, 동종 유사업체들도 예외 없이 시장금리가 인상된 것을 반영하여 해당 수수료 또는 금리를 인상하였다.

㈐ 아래 〈표 5〉에 나타난 카드 4사의 조달금리는 각 사의 제출 조달금리의 산정방법의 차이로 말미암아 즉, 엘지카드와 삼성카드의 경우에는 평균조달금리를 산정하여 제출하였고, 원고와 외환카드는 신규조달금리를 산정하여 제출하여 마치 그 차이가 큰 것처럼 보이나, 실제 카드 4사가 다시 조사하여 산정한 조달금리에 의하면 조달금리의 차이가 크지 않을 뿐만 아니라 모두 지속적으로 상승하고 있어 인상이 불가피하였다.

Article 201-40 of the Civil Procedure Act provides that the defendant already ordered corrective measures and the payment of penalty on the plaintiff's above rates shall be in violation of the principle of res judicata.

x) Even if the Plaintiff’s rate increase act is presumed to be unfair collaborative act, the Defendant abused and abused discretion in calculating penalty surcharges.

㈎ 법 제19조 제5항 에 의하면, 가격을 결정·유지 또는 변경하는 행위가 경쟁을 실질적으로 제한하는 행위에 해당할 때 비로소 부당한 공동행위의 합의가 추정되므로, 위와 같은 ‘가격을 결정·유지 또는 변경하는 행위’와 경쟁을 실질적으로 제한하는 행위‘라는 두 가지 간접 사실이 모두 갖추어져야 함에도, 피고는 원고의 위반행위 개시일을 현금서비스수수료율은 1998. 2. 16., 할부수수료율은 1998. 1. 21., 연체이자율은 1998. 2. 16.로 각 원고가 인상을 단행한 날짜를 기준으로 하여 원고에 대한 과징금을 산정하였던바, 각 요율의 인상의 경우 시장점유율 등을 근거로 하여 경쟁제한성이 인정되는 지 여부를 구체적으로 살펴보아야 할 것이어서, 원고의 각 요율 인상일을 그대로 위반행위 개시일로 볼 수는 없다 할 것이므로 이 사건 과징금 납부명령은 부과 재량행사의 기초가 되는 사실인정에 오류가 있어 재량권을 일탈·남용하였다.

㈏ 그렇지 않다고 하더라도 원고는 은행계 전업카드사로서 삼성카드나 엘지카드 등 비은행계 전업카드사에 비하여 가격추종자로서 보수적인 영업정책의 수행과정에서 본의 아니게 이루어진 것이고, 1998. 이후에 계속적인 시장점유율이 감소되었고, 특히 1998년도에는 307억원의 당기 순손실을 입었으므로 이러한 점을 감안하여 그 처벌수준을 정하여야 함에도 불구하고, 다른 카드 3사와 동일한 기준으로 원고에게 이 사건 처분을 부과한 것은 재량권을 일탈·남용한 것이다.

(b) Related statutes;

Monopoly Regulation and Fair Trade

Article 19 (Prohibition of Unfair Collaborative Acts) (1) No enterpriser shall agree with other enterprisers to jointly engage in any of the following acts that unfairly restrict competition (hereinafter referred to as "unfair collaborative acts") by contract, agreement, resolution, or any other means:

1. Fixing, maintaining or changing the price;

8. An act practically suppressing competition in a particular business area by interfering or restricting the business activities or business activities of other enterprisers.

(5) Where two or more enterprisers are committing any of the acts listed in the subparagraphs of paragraph (1) which practically restrict competition in a particular business area, they shall be presumed to have committed an unfair collaborative act despite the absence of an express agreement to engage in such act.

Article 21 (Prohibition of Unfair Collaborative Acts) The Fair Trade Commission may, when there exists any unfair collaborative act in violation of Article 19 (Prohibition of Unfair Collaborative Acts), order the enterpriser concerned to discontinue such act, to publish violations of the Act, or to take other corrective measures against the said enterpriser.

Article 22 (Prohibition of Unfair Collaborative Acts) The Fair Trade Commission may impose upon any enterpriser who has conducted unfair collaborative acts in violation of Article 19 (Prohibition of Unfair Collaborative Acts) a penalty surcharge not exceeding the amount obtained by multiplying the turnover determined by Presidential Decree by five percent: Provided, That in the case of absence of the turnover, etc., a penalty surcharge not exceeding one billion won may be imposed.

Article 55-3 Imposition of Penalties

(1) In imposing surcharges under this Act, the Fair Trade Commission shall take into account factors falling under each of the following subparagraphs:

1. Details and severity of the violation;

2. Duration and frequency of the violation;

3. Scale, etc. of benefits acquired by the violation.

(2) In the case of a merger with a company violating this Act, surcharges may be imposed and collected on the company established or maintained through the merger, on the grounds that unlawful practices conducted by the former have been deemed conducted by the latter.

(3) The criteria for imposing penalty surcharges under paragraph (1) shall be prescribed by Presidential Decree.

Enforcement Decree of Monopoly Regulation

Article 9 (Methods for Computing Penalty Surcharges)

(1) "Sales prescribed by Presidential Decree" in the main sentences of Articles 6, 22 (Penalty Surcharges), 24-2 (Penalty Surcharges), 28 (2), 31-2 (Penalty Surcharges) and 34-2 (Penalty Surcharges) of the Act means the average turnover of the enterpriser concerned for the three immediately preceding business years (hereinafter referred to as "standard turnover for imposition of penalty surcharges"): Provided, That where three years have not elapsed since the commencement of business as of the first day of the business year concerned, it means the amount computed by converting the turnover from the commencement of business to the end of the immediately preceding business year by the annual average turnover, and where the business has commenced in the current business year, by converting the turnover from the date of commencement of business to the date of violation into the annual turnover.

(2) Other matters necessary for calculating the standard turnover for imposition of penalty surcharges shall be determined by the Fair Trade Commission.

Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 16221 of March 31, 1999)

Article 61 (Collection of Penalty Surcharges and Additional Dues)

(1) Where the Fair Trade Commission intends to impose a penalty surcharge pursuant to Article 55-3 (1) of the Act, it shall specify the type of the act of violation and the amount of the penalty surcharge and notify in writing the payment of the penalty surcharge.

(2) A person who receives the notification under the provisions of paragraph (1) shall pay the penalty surcharge to the receiving agency designated by the Fair Trade Commission within sixty days from the date of notification: Provided, That if it is impossible to pay the penalty surcharge within such period due to natural disasters or other unavoidable causes, he shall pay it within thirty days from

(3) If the penalty surcharge is not paid in full by the payment deadline, a surcharge equivalent to 6/100 per annum shall be collected on the penalty surcharge in arrears from the day following the payment deadline.

C. Presumption of agreement

(i)The external form of action is consistent;

As seen in the above Appendix 4>, during the period from January 5, 1998 to March 2 of the same year, 1.01% of the cash service fee rate, and the overdue interest rate was 1.01% of the overdue interest rate, and the installment rate was raised in full at the same rate. However, even if the difference between the above raised time and the rate is meaningful from the card 4's point of view, it can be deemed that the above rate is identical to the economy in that it would not have little influence on the credit card company's choice or change from the customer's point of view, and therefore, the above rate is identical.

【Restriction on Competition

As seen in the above Table 2> and Table 3 â………………………………………………………………………………………………ââââââ……………………………ââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââââ

Referencely, in the case of the credit card business, there is no difference in that it is the amount to be borne by consumers according to the contract for the use of the card in question, regardless of whether the credit card company is a cash service commission or an installment payment after the due date, and the difference in the overdue interest rate by business operator is an important factor that constitutes the price competitiveness among the card business operators in relation to consumers, as in the case of the fee, and it is clear that the difference in the overdue interest rate by business operator is an important factor that constitutes the price competitiveness among the card business operators. Therefore, the argument that the overdue interest rate does not fall under the “price” as prescribed by the law is without merit, and even though each credit card business operator forms a single market through competition, each credit card business operator has the short-term financial function of the cash service and the installment purchase function of the installment service, although each credit card company forms a single market by separating each function

· Sub-determination

Thus, it can be presumed that the act of changing the rate of 4 card of this case is based on the agreement.

D. Determination on whether the presumption has been destroyed or lost

(i)Recognitions

The following facts may be acknowledged in full view of the overall purport of the pleadings in the descriptions of Gap evidence 1, 2, 3-5, 5, 1 through 4 (including each number), 6-1, 2, and 3.

㈎ 이 사건 요율 변경에 즈음한 카드 4사의 98. 1.～3. 조달금리 평균은 〈표 5〉와 같다.

The average of the procurement interest rates on January 3, 198, 198.

본문내 포함된 표 ？ 엘지카드 삼성카드 국민카드 외환카드 조달금리 12.62 15.51 21.04 21.59

㈏ 이 사건 요율 변경에 즈음하여 카드 4사의 내부문건의 내용은 다음과 같다.

① The Samsung Card consistently investigated information on the change of the rates of other companies, such as “the increase of the installment commission shall be promoted in the industry jointly,” “the increase of the installment commission shall be desirable,” and “the increase of the installment commission rate by only us per day shall be expected to be avoided by customers, and a large volume of excellent members will be expected to suffer losses.” The annual handling rate of KRW 1 trillion per year is expected, and “the rate of interest-free discount shall be maintained, but the rate of interest-free discount shall be determined by considering the trend of other companies and making a decision on whether to change the rate.”

② The National Card also examined the changes in the merchant fee rates, cash service fee rates, late interest rates, etc. of card 4 companies, and the implementation period in detail, including the following: “The Samsung Card and ELB Card” with respect to the increase in the installment commission rates, “The plan to enter into force on January 1, 98,” “The plan to enter into force on the current price increase”, “1.2 through 3.1% (the year 23.80%) with respect to the increase in the cash service interest rate,” “the change in the contents of the increase to other levels”, “the plan to enter into force on the current price increase at the time of the current price increase at the rate of 1.2 through 3.1% (the year 23.80%),” “the merchant fee adjustment rate and the merchant fee shall be changed to the other company’s level,” and “the other company’s non-

③ The EL branch card also investigated the estimated data on the credit card companies’ increase in the installment commission rate, cash service fee increase, credit extension period reduction, payment payment period extension, etc., including 4 card companies, such as the credit card companies’ statement as “influent interest, cash service fee, overdue interest added promotion” and “influent business common promotion according to the revision of the Interest Limitation Act (24.40%).”

④ On January 6, 1998, the foreign exchange card investigated the trends of other companies, such as Samsung Card, EL Card, the cash service interest rate of the national card, the interest rate by period on overdue interest rate, average interest rate, enforcement date, while the non- weather card is written in detail.

㈐ 위와 같은 타사의 추진현황은 카드 4사의 실무자 사이에 평소 연락을 통하여 입수한 것이다.

㈑ 이 사건 요율 변경에 즈음한 전업카드사의 당기순이익 변동추이는 〈표 6〉과 같고, 이에 의하면 1997년에 비하여 요율을 인상한 1998년에 국민카드는 195%, 삼성카드는 540%, 엘지카드는 694%로 당기순이익이 증가하였다(국민카드는 1998년에 일시적으로 당기순손실이 발생하였으나 이는 당해연도에 국민할부금융과 장기신용카드를 흡수합병하는 등의 사정에 기인한 것이다).

The trend of changes in net income for each professional card company of attached Table 6>

(unit: 00 million won)

In the part of the attached table in the main text, "97 "98 "99 2000 S. 2001 S. 41 222 141 2222 141 131 405 △ 5207 429 4,005 65 127 202 1,100 119 Samsung Card 208 579 3,604 6,002 L. 6,002 6,004 6,021,024 3,949 6,5333 Hyundai Card 130 △△△△△△△△5,898 △△△△△6,345 505 △△△△△△△△△ 5075,405 △△△6361,463964,6375 54964,63745)"

(Data: Financial Supervisory Service)

Note) Modern Card is based on a large amount of 6,31.5 billion won upon the termination of the workout program in 2001.

Shed Judgment

According to the above facts, 4 card companies have a big difference in their respective procurement interest rates ( even if the method of calculating the procurement interest rate of 4 card companies submitted to the defendant was different, there is still a difference in the procurement interest rate as asserted by the plaintiff) on the change of the rate of this case, and the credit card company increases the rate of this case at the same or similar rate, the credit card company is a market formed with 7 professional card companies, and the total market share of 4 card companies at the time of the change of the rate of this case reaches 58.9%, and other 4 card companies are excluded from the first-class non-credit card market, and there is a big impact on the customer card use performance according to the rate of this case, so it is difficult for the card company to reverse the rate of this case, and it is hard to view that the card company's collaborative act is a market structure where the credit card company increases its own business interest rate of 4 companies from time to time without any change in the rate of this case, and there is no difference in the existing net profit rate of the card company's.

E. Whether the principle of prohibition against double Jeopardy is violated

Comprehensively taking account of the overall purport of the arguments in Gap evidence 9-2, 3, and 4, the defendant may recognize that the act of the plaintiff et al. has been ordered to take corrective measures and pay a penalty surcharge on March 28, 2001, which had already been increased by the rate due to a significant decline in the procurement interest rate until the end of 2000, and that the act of maintaining the rate without reducing the rate constitutes an abuse of market dominant position. However, in this case, the plaintiff's act of maintaining the above increased rate even after the beginning of 2001, the economic situation of which has changed as the first half of 1998 as a violation of law, unlike the act of recognizing the plaintiff as a violation of law, is not identical with the basic facts. Accordingly, the plaintiff's assertion that the factual basis of the disposition in this case and the disposition on March 28, 2001 is identical is without merit.

F. Determination as to whether or not the discretion in the calculation of penalty surcharges has been exceeded or abused

(1) According to the statement in Gap evidence 1, considering the purpose of the defendant 1 to achieve the imposition of a penalty surcharge within the scope of the upper limit of the penalty surcharge under Article 22 of the Act and Article 9 of the Enforcement Decree of the Act, and the reasons stipulated in Article 55-3(1) of the Act, etc., it can be acknowledged that four card holders have determined the amount calculated by multiplying the sales amount, which forms the basis for the calculation of the penalty surcharge of four card holders, such as the plaintiff et al., by 2% of the amount of the penalty surcharge determined by considering the contents of the violation, the degree of restriction on competition, ripple effects, robbery, etc.

â…………§ 7) Operating income during the period of violation by person under review.

(unit: million won)

In addition to the interest rate for the cash service commission in the name of the person under whose name the voting was included in the main sentence, 154,108 11,896 73,3239,327 Samsung Card 147,860 80,616 74,414, 302,890 national card 154,908 111,72181,363347,992 foreign exchange card 93,474,986 39,09,09 177,47209,472

Note) calculated on the basis of data on operating income submitted by 4 card holders

B. However, according to Article 19(5) of the Act, since an agreement on unfair collaborative acts is presumed to have been reached only when “the act of determining, maintaining, or changing the price” falls under “the act of practically restricting competition,” it is reasonable to deem that the above two indirect facts were all satisfied, such as “the act of determining, maintaining, or changing the price,” and “the act of practically restricting competition.” As to the time when it is determined, the market share of the enterpriser who made the “act of determining, maintaining, or changing the price,” and the characteristics and current situation of the market in which the enterpriser produces and sells shall be comprehensively considered. Meanwhile, in calculating the penalty for unfair collaborative acts, if the Defendant calculates the sales by including the period other than the period of violation and uses it as the standard sales for imposing the penalty, it is erroneous in the fact-finding that the order to pay the penalty has been abused or abused, and thus, it is unlawful (see Supreme Court Decision 2002Du4648, May 27, 2003).

Secondly, on February 16, 1998, when the Plaintiff increased the cash service fee rate, the Samsung Card and El branch card (total market share 44.6%), and on January 21, 1998, when the discount rate was increased, only El branch card (total market share 33.2%), and on February 16, 1998, when the increase in the overdue interest rate was increased, the increase in the rate of Samsung Card and El branch card (total market share 44.6%) can be considered as the act of practically restricting competition. Accordingly, on each day when the Plaintiff increased the rate of this case, its market share, which is the premise of determining whether the above price increase in the price, constitutes the act of practically restricting competition, shall not be considered as the time of increase in the rate of each of the Plaintiff's market share, and it shall be considered as the time of increase in the rate of 38% or more than the market share of the Plaintiff's remaining 48% or more than the market share of each of the above case.

However, such an order of penalty surcharge payment is within the scope of the discretion of the defendant, so if it is recognized that there is an error of law that deviatess from or abused the limit prescribed by the Fair Trade Act and the scope of discretion, the court shall only revoke the entire order, and it shall not revoke only the part exceeding the limit or the remaining part exceeding the limit recognized as reasonable by the court.

5. Conclusion

Therefore, the part of the corrective order of this case is lawful, but since there is an error in the fact-finding as to the period of violation based on the calculation of the penalty surcharge, the payment order of the penalty surcharge shall be deemed to deviate from and abuse discretion and shall be revoked in its entirety. Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is so decided as per Disposition.

[Attachment]

Judges Oh-hyh (Presiding Judge) Kim So-young