[1] Criteria for determining whether a collaborative act restricts competition as provided by Article 19(1) of the Monopoly Regulation and Fair Trade Act, and whether a collaborative act jointly decided or changed price by enterprisers constitutes an unfair collaborative act (affirmative in principle)

[2] The meaning of "justifiable act performed in accordance with the law or any order issued under the law" under Article 58 of the Monopoly Regulation and Fair Trade Act

[3] The case affirming the judgment below holding that in case where Gap bank et al. agreed to establish a new purchase commission of 20,000 won per case for export bills of exchange in order to compensate for a decrease in profits arising from a change in the fixed-term calculation method for the realization of export bills of exchange and transferred its practice in order, and the Fair Trade Commission ordered corrective measures and payment of penalty surcharge on the ground that it constitutes an unfair collaborative act under Article 19 (1) 1 of the Monopoly Regulation and Fair Trade Act, the above collaborative act is competition-restricted and it does not constitute a justifiable act under Article 58 of the

[1] Whether a collaborative act restricts competition as provided by Article 19(1) of the Monopoly Regulation and Fair Trade Act or not should be determined individually by examining whether such collaborative act affects or is likely to affect the determination of price, quantity, quality, and other terms and conditions of trading, in consideration of various circumstances such as the characteristics of the pertinent product, consumers’ standard for choosing products, and the impact of the pertinent act on the market and enterprisers on competition. Meanwhile, the enterpriser’s act of jointly determining or changing the price causes a situation in which a certain degree of price would affect or are likely to affect free pricing depending on his/her intent by reducing price competition within the scope of price competition. Thus, such collaborative act should be deemed unfair, barring any special circumstances.

[2] The term “justifiable conduct conducted in accordance with an Act or an order issued under such Act” under Article 58 of the Monopoly Regulation and Fair Trade Act refers to a lawful and minimum conduct conducted within the scope of an order given by such Act or such Act, which specifically recognizes the exception of free competition, in a business that requires high level of public regulation from the perspective of public nature, while guaranteeing the exclusive status of a business entity through a business or an authorized system in which competition restriction is deemed reasonable due to the unique nature of the pertinent business

[3] In a case where the Fair Trade Commission ordered Gap bank, etc. to take corrective measures and pay penalty surcharges on the ground that the banks, such as Gap bank, agreed to newly establish an export bill purchase commission of KRW 20,000 per case to compensate for the decrease in profit from the change in the fixed-term calculation method of the purchase bill of exchange, and move to practice it in order, the case affirming the judgment below that the above collaborative act did not affect the market price by removing competition factors among the business operators, such as escape that occur when the above collaborative act independently set the purchase commission, and that the Fair Trade Commission ordered Gap bank, etc. to take corrective measures and pay penalty surcharges on the ground that "the business operator agreed to jointly determine, maintain, or change the price with other business operators" prohibited under Article 19 (1) 1 of the Monopoly Regulation and Fair Trade Act does not constitute a legitimate act of purchasing bills of exchange, since the market share of Gap bank, etc. is more than 63%, and it is sufficient to regard it as the process of performing the above agreement in the same amount.

[1] Article 19(1) of the Monopoly Regulation and Fair Trade Act / [2] Articles 19(1) and 58 of the Monopoly Regulation and Fair Trade Act / [3] Articles 19(1) and 58 of the Monopoly Regulation and Fair Trade Act

[1] [2] Supreme Court Decision 2007Du19416 Decided June 23, 2009 / [1] Supreme Court Decision 2008Du21058 Decided March 26, 2009 (Gong2009Sang, 576) Supreme Court Decision 2009Du11485 Decided February 11, 2010 / [2] Supreme Court Decision 2004Du8323 Decided November 23, 2006 (Gong2007Sang, 55) Supreme Court Decision 2009Du1983 (Gong2010Ha, 1278) Decided May 27, 2010

Han Bank Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Kang Yong-tae et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Gyeongsung, Attorneys Cho Yong-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu16973 decided April 16, 2009

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In full view of the adopted evidence, the court below recognized the following facts as follows: (a) it is sufficient to recognize that the Plaintiff et al. newly established a purchase commission of KRW 20,000 per case in order to compensate for the decrease in income from changes in the above-term calculation method, and it is sufficient to recognize that the Plaintiff et al. newly established a purchase commission of KRW 20,00 per case in order to establish a new purchase commission for the purpose of compensating for the reduction in income from such changes in the implementation method (hereinafter “the collaborative act in this case”); (b) it is sufficient to recognize that the Plaintiff et al. had agreed to establish a purchase commission of KRW 30,00 per case (hereinafter “the purchase commission of the Plaintiff et al.”) in order to change the period calculation method for calculating the conversion of export bill of exchange from “the date of the implementation of the purchase commission of the Plaintiff et al.” to “the date of implementation of the joint act” and that the Plaintiff did not have any delay in the implementation of the agreement between the Plaintiff et al. to November 4, 2002.

In light of the records, the fact-finding and decision of the court below is just, and there is no violation of the rules of evidence against the rules of evidence as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

Whether a collaborative act restricts competition provided for in Article 19(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) should be determined individually by examining whether the collaborative act affects or is likely to affect the determination of price, quantity, quality, and other terms and conditions of trading, etc., by taking into account various circumstances, such as the characteristics of the relevant product, consumers’ standard for choosing products, and the impact of the relevant act on the market and enterprisers on the competition. Meanwhile, the act of jointly determining or changing the price by enterprisers to the extent that it causes or is likely to affect free pricing depending on their intent by reducing price competition within the scope of price competition, and such collaborative act is deemed unfair unless there are special circumstances (see Supreme Court Decision 2008Du21058, Mar. 26, 2009).

Upon examining the records of this case in light of the above legal principles, the court below is just in holding that the collaborative act of this case has competition limitation in the market by removing competition factors between the business operators, such as escapes, etc. that occur when it is performed on the basis of its own set-term calculation method, and it does not contain any error in the misapprehension of legal principles as to the restriction on competition in the market, as otherwise alleged in the ground of appeal. The ground of appeal on this part is without merit, and there are no errors in the misapprehension of legal principles as to the restriction on competition in the market.

3. As to the third ground for appeal

The term "reasonable act performed in accordance with the law or any order issued under such law" under Article 58 of the Fair Trade Act means an act necessary or minimum to be performed within the scope of an order issued under the law or such law, where the exclusive status of a business operator is guaranteed through a business or authorization system deemed reasonable to restrict competition due to the special nature of the business in question, while a business which requires high level of public regulation from the perspective of public nature, etc. is specifically recognized as an exception to free competition (see Supreme Court Decision 2004Du8323, Nov. 23, 2006).

The lower court rejected the Plaintiff’s assertion that the instant collaborative act constitutes a legitimate act or its illegality, on the ground that it does not constitute an act of exercising the right to petition, on the ground that the Plaintiff’s claim that the instant collaborative act was not an act of exercising the right of petition, since the Financial Supervisory Service requested the improvement of the said fixed-term calculation method as “the same as “the foregoing inclusion” on the one hand, and there is no evidence to acknowledge the fact that the said act did not constitute a new purchase commission or that there was a specific instruction or recommendation on the fee rate, and that the instant collaborative act was conducted after the policy or implementation policy of the Financial Supervisory Service became final and conclusive, and that the instant collaborative act was not an act

In light of the aforementioned legal principles and records, such judgment below is justifiable. This part of the grounds of appeal is without merit.

4. As to the fourth ground for appeal

The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the following facts. ① The purchase commission of the plaintiff et al. continues to exist for a relatively long period, and the market share of the plaintiff et al. continues to exceed 63%, and ② Article 22 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) which provides for the upper limit of penalty surcharge for the initial collaborative act of this case as 5% of the relevant sales, was revised to 10% of the relevant sales under Act No. 7315 of Dec. 31, 2004, and Article 8 of the Addenda of the Enforcement Decree of the Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) provides that "No previous provision was applied to the Plaintiff's act that had been terminated before this Act enters into force or even after this Act enters into force, it cannot be viewed that the amendment of the former Monopoly Regulation and Fair Trade Act was a violation of Act No. 8631.

In light of the relevant provisions and records of the Fair Trade Act, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to the calculation of penalty surcharge as shown in the grounds of appeal. This part

5. Conclusion

Therefore, the appeal is dismissed and the costs of appeal are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)