In cases where technical (technical) materials and additional materials are submitted with “necessary evidence” as prescribed by Article 35(1) of the Enforcement Decree of the former Monopoly Regulation and Fair Trade Act, whether the eligibility of additional materials is naturally excluded solely on the ground that the additional materials are not merely to confirm or reinforce the contents already presented from technical materials in accordance with the principle of landing (negative)

Article 35(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 23475, Dec. 30, 201; hereinafter “Enforcement Decree”) provides “necessary evidence” to discuss or implement collaborative acts, such as certificates, written statements, etc. of executives and employees who participated in such collaborative acts (hereinafter “technical materials”) in accordance with the principle of know-how, and the business entities described in technical materials, such as documents, articles, electronic data, communications materials, etc. (hereinafter “additional materials”) to verify their intentions and contacts, contents of the agreement, and other matters regarding the implementation of such collaborative acts should not be easily excluded from the scope of the aforementioned additional materials to provide evidence to the other party for the purpose of determining whether the additional materials constitute an unfair collaborative act, such as an agreement evidencing the unfair collaborative act, and thus, it should not be readily concluded that the aforementioned additional materials may not be easily excluded from the scope of the evidence materials that are already presented to the other party to the collaborative act, such as the provision of evidence to the extent that they are not likely to be easily excluded from the scope of the aforementioned additional materials.

Article 22-2(1) of the Monopoly Regulation and Fair Trade Act; Article 35(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 23475, Dec. 30, 201)

Suwon Construction (Attorney Lee Im-soo et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm KEL, Attorneys Seo-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu26239 decided March 21, 2012

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

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

1. Regarding ground of appeal No. 1

A. Article 22-2(1) of the Monopoly Regulation and Fair Trade Act provides that corrective measures or penalty surcharges may be mitigated or exempted against a person who voluntarily reports or cooperates in an investigation by means of providing evidence, etc. (hereinafter referred to as “self-reporting person”). Article 35 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 23475, Dec. 30, 201; hereinafter “Enforcement Decree”) provides for the standards for mitigation or exemption for voluntary reporters, etc. shall be as follows: (i) the voluntary reporters and investigators shall be divided into one order and two order; (ii) the degree of reduction or exemption of technical requirements and the degree of reduction or exemption may vary; (iii) the submission of technical documents and electronic data, such as written consent, and (iv) the operation of the system (i) providing for the detailed methods of submitting evidence pursuant to delegation by the Enforcement Decree, (iv) the submission of technical documents and electronic data, including written consent, to directly verify the existence of the said collaborative act (hereinafter referred to as “written consent”).

Therefore, in order for voluntary reporters or investigators to benefit from reduction of or exemption from penalty surcharges, etc. (hereinafter “voluntary reporters, etc.”) must file a voluntary report or cooperate in investigation, and submit technical data and additional data as “necessary evidence.” However, the Enforcement Decree delegates the form or content of the direct data or additional data as “necessary evidence” to the public announcement of reduction or exemption without any special provision (Article 35(4)). In the public announcement of reduction or exemption, the evidence provides that “where the aforementioned additional data and additional data are submitted with “necessary evidence”, they shall not be limited to the form or type thereof, such as documents, recording tapes, computer files, etc.” (Article 4(2)). Therefore, even if the additional data are submitted with “written evidence”, it shall be deemed that the said additional data are contents of statements made by the relevant persons, and it shall not be readily excluded from the aforementioned additional data because it is merely 10 evidence to prove or reinforce the contents of the evidence already presented in accordance with the principle of reduction or exemption from technical data. It shall not be deemed that the aforementioned additional data are readily excluded from the scope or exclusion from the aforementioned additional data.

Ultimately, the issue of how there is value of evidence in the event of submission of technical data and additional data as “necessary evidence” can be considered as a discretionary determination in determining the mitigation of so-called “the second-class investigator for investigation” falling under Article 35(1)3 of the Enforcement Decree, which recognizes discretionary authority as to whether to reduce the amount of penalty surcharge, etc., unless there are special circumstances. However, the eligibility as additional data should not be denied.

B. According to the reasoning of the lower judgment, the lower court determined that “additional data” includes documents, etc. containing the statement of the relevant collaborative act-related persons, such as a written confirmation or written statement, and that all the evidence which contributed to enhancing the probative value of the evidence already submitted by other voluntary reporters, or ensuring the authenticity of the facts revealed at the stage of the investigation, may be included in such evidence, on the grounds as stated in its reasoning, including that the cooperation of those voluntary reporters, etc. is not necessarily limited to cases where the purport of the exemption system for those voluntary reporters, etc. was to facilitate the investigation by the executive agency. Furthermore, on the same premise as above, the lower court determined that in this case, the corrective materials submitted by the Plaintiff within the period for correction can be deemed sufficient as technical materials and additional materials.

On the other hand, as to the request for explanation of the full bench, the Defendant made it clear in the lower court that the Plaintiff did not meet the requirements for reduction or exemption, such as submission of “necessary evidence” and that it did not mislead the Plaintiff to make discretionary decisions. In light of the records, based on the premise of such disposition, the lower court’s aforementioned determination is justifiable in accordance with the relevant legal doctrine as seen earlier, and there is no illegality such as misapprehending the legal doctrine regarding the requirements for reduction or exemption of penalty surcharges, etc. as prescribed by the Enforcement Decree, or exceeding the bounds of the principle of free evaluation of evidence

2. Regarding ground of appeal No. 2

Article 35(1) of the Enforcement Decree provides that the voluntary reporter, etc. shall faithfully cooperate until the investigation is completed, such as stating all facts related to unfair collaborative acts and submitting related materials, etc. shall be one of the requirements for receiving benefits from reduction or exemption.

The lower court determined that even if the Plaintiff’s officers and employees prepared documents prepared for the Defendant’s internal investigation or prepared various countermeasures against other external institutions’ supervisory activities, such circumstance alone cannot be readily concluded that the Plaintiff did not cooperate with the Plaintiff in good faith until the investigation is completed in relation to the instant collaborative act.

In light of relevant legal principles and records, this part of the judgment of the court below is just and acceptable, and there is no violation of law by misapprehending legal principles as asserted in the grounds for appeal.

On the other hand, the defendant argues that the plaintiff did not cooperate with the plaintiff in good faith on the ground that the plaintiff did not provide the business pocket book for officers and employees, but it was not alleged in the court below, and there is no evidence to deem that the plaintiff did not submit it despite the existence of the above business pocket book.

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)