NAS Construction Co., Ltd. (Law Firm Pacific, Attorneys Shin Jae-do et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Shin, Attorney Noh Jeong-hee, Counsel for defendant-appellant)

November 5, 2014

1. The Defendant’s corrective order, which was issued on February 25, 2014 by the plenary session Resolution No. 2014-30, and the penalty surcharge payment order issued against the Plaintiff is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 75% is borne by the Plaintiff, and the remainder 25% is borne by the Defendant, respectively.

The Defendant’s corrective order and penalty surcharge payment order issued to the Plaintiff as No. 2014-30 of the plenary session’s resolution on February 25, 2014 is revoked.

1. Facts recognized;

A. Status of the plaintiff, etc.

The Plaintiff and Hyundai Industrial Development Co., Ltd. (hereinafter referred to as “Co., Ltd.” in the name of the Plaintiff and Hyundai Industries Development Co., Ltd.) are corporations with construction purposes, modern construction, treatment construction, KS construction (hereinafter collectively referred to as “five companies including the Plaintiff, etc.”), scco construction, Samsung T&T construction, Samsung T&T, and large forest industry ( collectively referred to as “eight companies including the Plaintiff, etc.”), joint construction, scco construction, scco construction, scco construction, scco construction, double industry construction, sculing global construction, sculing global construction, sculing, and sculing ( collectively referred to as “21 companies including the Plaintiff, etc.”), which are corporations with construction business purposes, and are prescribed by Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “Fair Trade Act”).

(b) Bidding for the 1)ton Construction Work for the Incheon Urban Railroad 2;

(1) The Incheon Urban Railroad 2 Line Construction Work (hereinafter “instant Construction Work”) was divided into 16 sections (201 to 216 sections) and bid was conducted. The total design points (50 to 70 points) and price points (30 to 50 points) were assessed on the basis of the full marks of 100.

(2) On May 29, 2009, the Plaintiff participated in the bid on the construction section 205 implemented on May 29, 2009 and on the construction section 211 implemented on April 17, 2009, and the result of the bid is as follows.

In the case of the Plaintiff (40), Samsung Heavy Industries (10), Samsung Heavy Industries (10), Celel (10), 10, 10, 10, 10, 21, 38, 21, 30, 30, 30, 21, 30, 21, 30, 21, 30, 21, 30, 30, 21, 30, 21, 30, 38, 20, 20, 30, 30, 12, 30, 10, 5, 10, 5, 10, 5, 5, 5, 86, 86, 7, 7, and 7).

2) Current status of the consortium composition by company (shares ratio by company: %)

C. The defendant's disposition

On February 25, 2014, the Defendant issued a corrective order and a penalty surcharge of KRW 12 billion (hereinafter “instant disposition”) to the Plaintiff on the ground that the Plaintiff violated Article 19(1)8 of the Fair Trade Act by engaging in any of the following unfair collaborative acts (hereinafter “instant collaborative act”).

On December 208, eight companies, including the Plaintiff, etc., included in the main text, agreed to participate in the bidding of the construction sections 203, 205, 207, 209, 211, 213, 214, and 216 among the instant construction works, and five companies, including the Plaintiff, etc., agreed to participate in the bidding of the construction sections 203, 205, 207, 209, 211 construction sections (hereinafter “instant five sections”), respectively, and implemented the agreement to participate in the bidding with the successful bidder in the two sections, and to participate in the bidding in an intersection to prevent any overlap.

[Reasons for Recognition] No. 1, Gap's evidence and the purport of whole pleadings

2. Determination on the legitimacy of the instant disposition

A. As to the existence of the reasons for the measure

(1) Summary of the Plaintiff’s assertion

As alleged by the Defendant, the Plaintiff did not have agreed in advance with other construction companies regarding the tender of the instant five construction sections with the successful bidder of each construction section. Accordingly, the instant disposition was unlawful since there was no ground for disposition.

(2) Determination

In full view of the following circumstances, the facts acknowledged and adopted as above, Eul evidence Nos. 17, 22 through 28, and 30, and the purport of the entire pleadings, the plaintiff may fully recognize the facts of the collaborative act in this case. Accordingly, the plaintiff's allegation in this part is without merit.

(A) As a result of the tender on the five sections of the instant case, there were a number of indirect situation in which bid collusions were predicted as follows.

1) Five companies, including the Plaintiff, etc., participated in the bidding of two construction sections, respectively, to the extent that they do not overlap as seen below, and received one of them as awarded a successful tender.

The Plaintiff, as indicated in the main text, is the Plaintiff’s land section 203 205 207 209 211 Modern Industrial Development, Plaintiff Daewoo Construction, S K construction, Hyundai Industrial Development, Modern Construction, Ltd.

2) Both the five sections of this case showed a consistent tendency with the final bid.

3) The winning price ratio indicating the winning price in comparison with the awarding price was very high compared with the ordinary bidding (According to the “Management Strategy Plan of 2012,” which is the internal document of the development of the modern industry, the average winning price ratio of the 2008 internship construction, immediately before the collaborative act of this case, is about 78%).

(B) There are objective documents supporting the existence of the instant collaborative act as follows.

1) The actual bidding result of the instant construction is mostly the same as that of the participation in each construction section prepared by the contractor or design firm of the instant construction project, such as scark Construction, Promotion Company, East-west Construction, Pacific Construction, East-west Engineering, and Western Engineering. In the case of construction sections 205, 211 participating by the Plaintiff, the actual bidding result is identical with that of the current status sheet prepared by the said six companies, and the construction section 205 section is identical with the actual bidding result. In particular, each of the above current status sheet is the same as that of each current status sheet prepared by Pacific Construction and East-west Engineering, excluding some construction sections, regardless of the order of registration of P Q (P-S), the successful bidder is entered below the next, and the successful bidder is entered in the following.

2) On December 29, 2008, Nonparty 1’s business pocket book of the instant construction project as of December 29, 2008 includes a list of the current status of each construction section of the instant construction project. However, during the instant construction project, the “eight draft consultations” in the said current status list states that, among the instant construction projects, eight construction sections, including the Plaintiff, etc., do not overlap with each other with respect to the sections of the instant construction project. In the case of the remaining construction sections of the construction project except for the 216 construction sections in which the scco construction is written, the same as the actual bid (the first scco construction plan was planned to receive a successful bid for the 216 construction sections, but the construction project amount decreased, thereby modifying the plan to be awarded a successful bid for the construction section of 201 sections).

3) The “participating participant” in the “Status of the participant enterprises of the Incheon subway No. 2, Incheon subway Co., Ltd.” prepared in the south of the Republic of Korea on January 2009 refers to the name of the participant company for each construction section as of January 28, 2009 (However, in the case of construction sections 206, the participant company is not mentioned). In particular, in the case of construction sections 201 to 203, 207 to 215, the entry of the “participating” and the actual bid result were consistent with the entry of the “participating” and the name of the said “participating” were determined by the successful bidder and the successful bidder. In addition, the “the result of the analysis” of the said documents also states that “in the case of the design construction section in which the construction cost is above the construction cost base of KRW 10,000,000, in fact, the prior arrangement of the ten major M&D will be completed.”

4) The “report on the current status of construction works of the construction works of the construction works of the construction works of the 210 construction sections from the ○ Engineering Department in charge of Hyundai Construction and Hanyangyang, Inc., in April 2009.” In particular, in the case of the construction works of the 205 construction section, the tender was not yet executed, but the Plaintiff entered it as the construction works.

(C) The five and five design firms, including the Plaintiff, dealt with the bid price and the sloping sections as follows before the bid result is determined, and the Plaintiff did not present any reason to be able to obtain the bid price.

1) Five companies, including the Plaintiff, participated in the bid but failed to receive the successful tender, paid only the amount of about 50% of the bid price or the amount less than the amount of compensation for design under the relevant provisions compared to the bid price for the construction sections.

2) In the case of Modern Construction and Treatment Construction, a contract with a large designer was entered into with a small and medium designer, while a contract was entered into with a small and medium designer for a construction section which was awarded a successful bid. On the other hand, in the case of the development of the Plaintiff and Hyundai Industry and the case construction, the same designer entered into a design contract with a small and medium designer for a construction section which was awarded a successful bid, even though the same designer was in charge

3) The Plaintiff did not establish a △△ consortium and a joint design office, a main designer, to exceed one month after the order was issued by the construction section 211. The Plaintiff organized a joint design office only before the order was issued to the construction section 205. In addition, while allocating the class of officers to the construction section 205 staff to the construction section, the Plaintiff allocated the class of officers to the construction section 211.

4) On the contract entered into with the Plaintiff, △△ consortium appears to have been aware that, while having entered into a successful repair agreement with all the sections of 205, 211, the basic design cost for the 211 construction sections, which are the sloping construction sections, was only the beginning. Furthermore, △△ consortium had significant differences (one, three each, respectively) between 205 construction sections and 211 construction sections in the number of persons in charge of design and, in particular, prepared human resources management plans for the 205 construction sections, while the plan was not prepared for the 211 construction sections after the successful bidder was selected for the 205 construction sections.

B. As to the illegality of the corrective order

(1) Summary of the Plaintiff’s assertion

Of the instant disposition, the corrective order (hereinafter “instant corrective order”) contains an excessive comprehensive content as follows, or is in violation of the principle of clarity and proportionality due to excessive level of sanctions, and is also unlawful in violation of relevant statutes, such as the Fair Trade Act.

(A) Of the instant corrective order, where the instant corrective order prohibits a construction company’s unfair competition-restricting act, the scope of bidding prohibited by the collaborative act is limited to determining the scope of bidding as “tender for construction works by the government and public institutions” and de facto declaring the prohibition under Article 19(1) of the Fair Trade Act as it is, and it is difficult to deem that

(B) In the instant corrective order, where the part prohibiting the exchange of information among the constructors is stipulated as “tenders for construction works by the government and public institutions” and the scope of information prohibited from exchange is also difficult to predict the specific contents and scope of the said order by stipulating that the scope of information prohibited from exchange is “information on the intent to participate in bidding and decision-making, etc.”

(2) Determination

(A) A corrective order under the Fair Trade Act has to be somewhat inclusive and abstract due to its inherent nature, and the scope of an act prohibited by the corrective order should be determined by comprehensively taking into account the language and text of the corrective order, the relevant statutes, and the grounds for the corrective order stated in the written resolution (see Supreme Court Decision 2012Du19298, Nov. 14, 2013). Meanwhile, “other measures necessary for correction” under Article 21 of the Fair Trade Act include all measures deemed necessary to correct the violation, as well as the suspension of the act. Therefore, where a business entity engages in an unfair collaborative act through mutual exchange of information, if necessary to correct the unfair collaborative act (see Supreme Court Decision 2007Du24616, May 28, 2009), the Defendant may order the business entity to exchange information (see Supreme Court Decision 2007Du24616, May 28, 2009).

(B) However, considering all the Defendant’s corrective orders cited by the Plaintiff in light of the following circumstances, the instant corrective order does not constitute an unlawful ground, such as the Plaintiff’s assertion. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

1) Of the instant corrective order, the part prohibiting unfair competition-restricting practices by construction companies is that “21 companies, including the Plaintiff, shall not select a successful bidder in advance in the bidding of construction works by the government and public institutions, and shall not re-examine the act of unfairly restricting competition in the tender of construction works by the government and public institutions, such as participation in the tender formally.”

However, the defendant, while issuing a corrective order, cannot determine in advance any participation in the tender of any construction work among the construction works ordered by the government and public institutions. As such, it is inevitable to use a somewhat comprehensive and abstract expression about the scope of the market where the agreement is prohibited, and rather, it is necessary to prevent the recurrence of identical or similar collaborative acts in the future. In addition, the defendant's prohibited act is understood to be specified as "the prior selection of successful bidder and the formal participation of another construction company or any similar competition-restricting act" with regard to prohibited act, and it does not seem to be too comprehensive and abstract. Furthermore, considering that the defendant set the scope of the market where the defendant prohibits unfair competition-restricting act by setting the scope of the market where the defendant is prohibited, it is not determined that this part of the corrective order is in violation of the principle of proportionality or it is not recognized as

2) Of the instant corrective order, the part prohibiting the exchange of information among the constructors is that “21 companies, including the Plaintiff, shall not exchange information on the intent to participate in, and decision-making matters that have not been disclosed in the subsequent bidding of construction works by the government and public institutions by means of direct contact, wire contact, e-mail, or any other means.”

However, it is inevitable to use somewhat comprehensive and abstract expressions about the scope of a market where information is prohibited as seen earlier in order to achieve the purpose of a corrective order. In addition, in light of the language, reason, etc. of this part of a corrective order, this part of the corrective order is to prohibit only the exchange of information that is not disclosed to the market as information that makes it easy for the government and public institutions to easily determine the successful bidder, etc. in the bidding of construction works ordered by the government and public institutions, and thus, it cannot be deemed that such scope is too comprehensive and abstract. Furthermore, it is understood that the exchange of information prohibited by the Defendant is limited not to the exchange of information that is helpful to restricting competition, such as information that is accompanied by the company’s normal business activities, but to the exchange of information that is not disclosed to the market

C. As to whether the penalty surcharge payment order is illegal

(1) Summary of the Plaintiff’s assertion

Among the disposition of this case, there are illegal causes such as deviation from and abuse of discretionary power in the calculation of the relevant sales or imposition penalty surcharge as follows.

(A) As to the calculation of the pertinent sales

The Plaintiff organized a joint supply and demand organization with local enterprises and participated in the bidding of the Section 205,211 among the instant construction works. Nevertheless, the Defendant calculated the total contract amount of the said two sections of construction works as the Plaintiff’s related sales without considering the Plaintiff’s share ratio in the joint supply and demand organization.

Furthermore, the Plaintiff participated in the construction section 211 and did not receive a successful bid. However, the instant collaborative act constitutes a kind of market division, which is a business entity’s agreement on bidding for several construction sections, and thus constitutes a successful bid for each construction section. The contract price of the construction section 211 is already included in the contract price of each of the construction sections awarded a successful bid. Accordingly, the inclusion of the contract price of the construction section 211 in the Plaintiff’s relevant sales constitutes excessive and overlapping sanctions.

(B) As to the calculation of penalty surcharges

1) While the Defendant deemed the instant collaborative act to constitute “a serious violation” and applied the imposition standard rate to 10%, considering whether the Plaintiff acquired unjust profits, the degree of undermining competition order, relevant regulations, etc., the instant collaborative act constitutes “serious violation” where the imposition standard rate in the Defendant’s internal guidelines is “3 to 7%.”

2) As of the date of deliberation on the instant disposition, the Defendant considered the circumstances that the average amount of net income for the immediately preceding three business years was inappropriate as of the date of deliberation on the instant disposition. However, the Defendant, as of the date of resolution on the instant disposition, was an average amount of increase of net income for the immediately preceding three business years, and the Defendant, as of the date of resolution on the instant disposition, did not take account of the continuous intrusion of the construction market, which led to a serious imbalance among the penalty surcharges against the business operators.

3) The Plaintiff, among the instant construction works, was awarded a successful bid for 205 construction sections, but was reported by the enemy, and there was no remuneration from Hyundai Construction, which is the successful bidder of the 211 construction sections participating in the 211 construction project. Rather, the Plaintiff was liable for the design cost of KRW 960 million for participation in the bid of the 211 construction sections, but was compensated for only KRW 510 million out of the compensation for design for the 205 sections. In addition, the Plaintiff was compensated for damage by the design cost of the 205 sections. In addition, the Plaintiff’s share ratio in the joint contractor within the 205 sections is only 40%. Nevertheless, unlike the previous cases of the penalty surcharge payment order, the Defendant violated the principle of proportionality and the legal principles of self-regulation in administration by calculating the penalty surcharge without due consideration.

(2) Determination

(A) As to the calculation of the pertinent sales

1) Article 22 of the Fair Trade Act provides that when a violation of the provisions of Article 19(1) of the Fair Trade Act occurs, the Defendant may impose a penalty surcharge on the relevant enterpriser within the extent not exceeding the amount calculated by multiplying the sales amount determined by the Presidential Decree by 10/100. However, Article 9(1) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 23864, Jun. 19, 2012; hereinafter “former Enforcement Decree of the Fair Trade Act”) upon delegation, the term “sales amount determined by the Presidential Decree” refers to the sales amount or equivalent amount of goods or services sold in a particular business area during the period of the violation. However, if a violation is “tender collusion and other similar acts”, it refers to the contract amount if the violation is “tender collusion and other similar acts”, it does not stipulate that the relevant sales amount should be calculated differently depending on whether the violating enterpriser independently participated in the bidding or whether it actually

On the other hand, a joint venture basically has the nature of a partnership under the Civil Act, and the Plaintiff has a direct or indirect interest in the whole contract amount as a member of the partnership. In addition, five companies, including the Plaintiff, etc., only consider the construction amount of each construction section in determining successful bidder for each construction section, and do not take a separate account of the ratio of the construction amount corresponding to the actual share of the company, excluding the shares of the regional companies that constitute the joint venture. Furthermore, in order to realize the administrative purpose of suppressing bid negotiation agreement, as in the case where the violating company independently received the successful bid, it is unreasonable or unreasonable to regard the "contract amount" as the relevant sales where the violating company organized a joint venture and received the successful bid or participated in the said enterprise.

In full view of these circumstances, the calculation of the total amount of the contract price of the construction section 205,211 out of the instant construction works is lawful as measures in accordance with the relevant statutes, in order to impose a penalty on the Plaintiff who agreed to bid collusion prohibited under Article 19(1)8 of the Fair Trade Act.

2) Of the sections 211, the Defendant reduced 50% of the relevant sales revenue in the process of calculating the basic penalty surcharge under this part by taking into account the circumstances in which the Plaintiff participated in the Plaintiff’s bidding. In addition, in order to realize the administrative purpose of preventing unfair collaborative acts, the penalty surcharge is an administrative sanction imposing sanctions against the act of violation, adding unjust enrichment restitution factors to the basic nature of the administrative sanction (see Supreme Court Decision 2002Du7456, Oct. 28, 2004, etc.), it is not determined that calculating the contract amount of the sections 211, which the Plaintiff participated in the bidding as well as the contract amount of the sections 205 bid awarded by the Plaintiff, constitutes an excessive and overlapping sanction.

(B) As to the calculation of penalty surcharges

1) In the bidding market, the instant collaborative act is an act of setting a successful bidder, etc. in advance, and the effect of restricting competition is apparent, and the market share is more than 75% and participated in the selection of a successful bidder by construction section. In addition, in the case of five companies including the Plaintiff, the purpose of the instant collaborative act was eliminated by the bid itself, such as receiving a successful bid at the highest bid price rate. In addition, in addition, the instant collaborative act is a large-scale project with the ordered price of approximately KRW 1.30 billion and the social and economic ripple effect of the instant collaborative act is not small, the Defendant’s decision that the instant collaborative act constitutes “an act of unfair conduct” is sufficiently acceptable.

2) However, in full view of the following circumstances, which can be known through the overall purport of evidence Nos. 1 and 5-1, 2, 14, and 15, the Defendant’s failure to consider the Plaintiff’s ability to impose a penalty surcharge as a cause for mitigation of the Plaintiff’s penalty surcharge in calculating the penalty surcharge on the Plaintiff constitutes an abuse of discretionary power, such as erroneous determination of facts or a violation of the principle of proportionality and equality. Accordingly, the Plaintiff’s assertion pointing this out has merit.

A) The Defendant applied Article 4.4.4.a. (1)(a) of the “Public Notice of Specific Standards, etc. for Imposition of Penalty Surcharges (amended by Notice No. 2012-6 of the Fair Trade Commission, Mar. 28, 2012; hereinafter “Public Notice of Penalty Surcharges”) (hereinafter “instant provision”). From among the instant violators, the Defendant appears to have rejected the Plaintiff’s assertion that the Defendant did not explicitly increase the amount of penalty surcharges for the three business years immediately preceding the date of deliberation on the date of the instant violation by taking into account that the average amount of net income in the financial statements for the three business years immediately preceding the date of deliberation is less than 3:2:1, respectively, and that capital erosion in the financial statements of the immediately preceding business year as of the date of deliberation on the date of deliberation on the penalty surcharges was less than 70% of the arbitrary adjustment of penalty surcharges, taking into account the Plaintiff’s ability to increase the amount of penalty surcharges on the average net income for the three business years immediately preceding the date of deliberation on the date of issuance of the penalty surcharges.

B) However, [Attachment 2] 2. D-1] of the former Enforcement Decree of the Fair Trade Act provides, “Where it is deemed that a penalty surcharge is excessive due to a violation’s failure to fully reflect his/her actual ability to bear the penalty, the effect of the violation on the market, the scale of profits acquired from the market or economic conditions, and other violations, etc., a penalty surcharge may be determined by a reduction of not more than 50/100 of the second adjusted calculation standards. However, where it is deemed reasonable to inevitably reduce a penalty surcharge exceeding 50/10 due to a significant shortage of the ability to pay the penalty surcharge, etc., the penalty surcharge may be reduced exceeding 50/100.” However, the penalty surcharge notice is merely an internal business practice rule of the defendant that sets the criteria for calculating the penalty surcharge within the amount prescribed in Article 22 of the Fair Trade Act, etc., and the Plaintiff does not have any grounds for reducing the penalty surcharge, considering the Plaintiff’s ability

Although at the time of the deliberation of the instant case, the Plaintiff’s financial statements for the business year 2013 had not yet been finalized, the Plaintiff’s net income for the business year 201 was significantly decreased from approximately KRW 412.5 billion for the business year 2012 to KRW 119.1 billion for the business year 2012, as well as was anticipated to cause net loss of at least KRW 90 billion for the business year 2013. Therefore, there is sufficient room to conclude that the Defendant did not reduce the penalty surcharge solely on the ground that the Plaintiff does not fall under the instant provision, by failing to fully reflect the Plaintiff’s actual ability to bear the penalty surcharge up to KRW 12 billion (the Plaintiff actually sustained net loss of KRW 92.6 billion for the business year 2013, the average amount of net income for the business year from KRW 2011 to KRW 2013. However, the Defendant did not have any reason to reduce the penalty surcharge on the ground that the Plaintiff does not fall under the instant provision.

Of course, the Defendant reduced the 10% of the voluntary adjustment penalty surcharge by taking into account the circumstances with the decline of the construction market. However, such mitigation is merely the same as that of all 21 companies including the Plaintiff, and thus, it cannot be deemed that the reduction was made by taking into account the Plaintiff’s ability to bear the penalty surcharge.

C) In the case of two industrial construction, the Plaintiff was awarded one construction section similar to the Plaintiff through the instant collaborative act, and participated in the bidding of one construction section, and the relevant sales amount reached approximately KRW 65.1% of the Plaintiff. However, in the case of two industrial construction, the Defendant’s reduction of 70% by taking into account the burden of penalty surcharge, but did not at all reduce the penalty surcharge to the Plaintiff, and the penalty surcharge imposed on the two industrial construction is excessive to approximately 10.5% of the Plaintiff’s penalty surcharge imposed on the two enterprises. As seen earlier, as long as the Plaintiff is deemed to lack of the burden of penalty surcharge, the imbalance of the amount of the penalty surcharge cannot be deemed as discrimination based on reasonable grounds.

D) As of the time of the original adjudication, the Defendant decided on an objection filed by an enterpriser who had not been mitigated from a penalty surcharge taking into account his/her ability to pay the penalty surcharge, as the average amount of net income for the immediately preceding three business years increased by 3:2:1, respectively, on the financial statements of the immediately preceding three business years as at the time of the original adjudication. Considering the financial statements finalized after the date of deliberation on the original adjudication, the Defendant accepted the objection on the ground that the average amount of net income for the immediately preceding three business years was verified as a hostile person, and reduced the discretionary adjustment penalty surcharge by 50%. However, in the case of the Plaintiff, there is no reason to be treated differently in terms of the reduction of the penalty surcharge by taking into account his/her ability to pay the penalty surcharge, in addition to the fact that the Plaintiff did not raise an objection against the Defendant as soon as he/she did not immediately file a lawsuit, and therefore, the Defendant’

3. Conclusion

The part of the Plaintiff’s claim seeking revocation of the penalty surcharge order of this case is with merit. Accordingly, this part of the claim is accepted, and the penalty surcharge order of this case is revoked, and the remainder of the Plaintiff’s claim is dismissed as

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)

Note 1)ton means the way by which the package work executor is in charge of all design and construction works.

2) Design firms were excluded from among the consortiums participating therein.

3) The penalty surcharge order is a discretionary act of the Defendant, and as long as the Defendant imposed a penalty surcharge by deviating from and abusing its discretion, the court is bound to cancel the entire penalty surcharge order.