2016Du43312 Revocation, such as a corrective order

A Co., Ltd., a merged A Co., Ltd.

(former Trade Name: B)

Law Firm Sejong, Counsel for the plaintiff-appellant

Attorney Lee Byung-chul, Counsel for the defendant-appellant

Fair Trade Commission

Government Legal Service Corporation (Law Firm LLC)

Park Jong-si, Tae-Gyeong, Lee Tae-tae, Lee Tae-tae, Lee Tae-tae

Seoul High Court Decision 2014Nu49110 Decided June 2, 2016

November 14, 2019

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 6, the "unfair collaborative act" prohibited by Article 19 (1) of the Monopoly Regulation and Fair Trade Act includes not only explicit agreement but also implied agreement (see Supreme Court Decision 2001Du1239, Feb. 28, 2003, etc.). However, it is essential that two or more enterprisers have contact with intention. Thus, it cannot be deemed that there exists an external form consistent with the "unfair collaborative act" listed in each subparagraph of the above provision, and there is no proof of circumstances to acknowledge the reciprocity of communication between the enterprisers, and the burden of proof on such agreement is against the defendant ordering corrective measures on the ground of such agreement (see Supreme Court Decision 2012Du17421, Nov. 28, 2013, etc.).

In full view of the circumstances indicated in its reasoning, the lower court determined that it is insufficient to recognize that the evidence submitted by the Defendant alone was insufficient to have agreed with other construction companies on the division of sections based on the information on bidding sections of other construction companies acquired by the Plaintiff through the information exchange of this case, including the background and nature of the instant construction project, such as a large-scale construction project in the alternative bid method and the recommendation for one construction section bidding in accordance with the policy judgment of the ordering agency, the background and nature of the instant construction project, the background and nature of the Plaintiff’s decision to participate in the tender of 4 sections out of the entire 8 sections, the circumstances leading up to the Plaintiff’s decision to participate in the tender of other construction companies, other than the Plaintiff and G Co., Ltd., and G Co., Ltd., the Plaintiff did not maintain the 4 sections bidding policy and did not adjust the bid sections, and it was difficult to find the need to agree on the division of sections with other construction companies while taking charge of the risk of failure caused by the competition with G Co., Ltd.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the agreement on unfair collaborative acts and the object of the agreement on the division

2. As to the grounds of appeal Nos. 7 through 9, this part of the grounds of appeal is merely disputing the selection of evidence and fact-finding, which belong to the exclusive jurisdiction of the fact-finding court, and cannot be viewed as legitimate grounds of appeal. Furthermore, even if the reasoning of the judgment below is examined in light of the records, the judgment of the court below did not err by exceeding the bounds of the free evaluation

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 Kim Jong-hwan

Justices Park Sang-ok

Lee In-bok and Lee In-chul

Justices Noh Jeong-hee