(영문) 서울고등법원 2013.2.7.선고 2012누11036 판결

1. The Defendant’s order to pay penalty surcharges in attached Form 1, which was issued against the Plaintiff by Decision No. 2012-044, March 26, 2012, is revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 70% is borne by the Plaintiff, and 30% is borne by the Defendant.

Purport of claim

The Defendant’s corrective order and penalty surcharge payment order stated in attached Form 1, which was issued against the Plaintiff by Decision No. 2012-044, March 26, 2012, shall be revoked.

Reasons

1. Details of the disposition;

A. Status of the plaintiff, etc.

The plaintiff, Doksan medicine (hereinafter referred to as "stock company" in the company's trade name), A, Moste, Moste, Kanam medicine, postal administration medicine, and ASEAN medicine are the entrepreneurs who engage in the wholesale business of medicines (hereinafter referred to as "the above seven enterprisers").

(b) Distribution routes and wholesale transactions of drugs;

(1) The distribution channel of domestic pharmaceutical products can be classified as follows. In general, the transaction between wholesalers and wholesalers in the following transaction is generally referred to as a "marketing transaction".

Before the amendment of the Pharmaceutical Affairs Act on May 9, 2012, Article 62(1)7 of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare No. 123, May 9, 2012) [Article 57(1)7 of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare, No. 434, Jan. 15, 2008)] provides drugs to a general hospital (amended by Ordinance of the Ministry of Health and Welfare, No. 434, Jan. 15, 2008) as prescribed by the Medical Service Act in accordance with Article 62(1)7 of the former Enforcement Rule of the Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of Health and Welfare, No. 100, Jan. 15, 2008).

① The Ulsan National University Hospital (referring to a general hospital with at least 800 beds) purchased drugs from two or three drug wholesalers under a negotiated contract prior to 2004, but from 2004, it purchased drugs through competitive bidding for drug wholesalers meeting certain requirements, such as the record of supply of drugs. Qualifications for participation in the bidding in 2006 were possible within two hours after the order of the first drug. Qualifications for participation in the bidding in 2006 were 5 billion won or more. Qualifications for participation in the bidding in 2007 and 2008 were able to be supplied within three hours after the order of the first drug, and the first five-3-6-6-6-6-6-6-6-6-6-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-77-77-7-7-7-7-7-7-7-7-7-7-7-7.

③ At the time of bidding for the purchase of drugs, the Ulsan National University Hospital determined and publicly announced the basic amount of bidding (hereinafter referred to as the “basic amount”) calculated by adding the drug prices of the relevant drugs (the maximum amount determined and publicly notified by the Ministry of Health and Welfare in cases of drugs subject to health care benefit under the National Health Insurance Act, and the amount identified as a market survey in cases of drugs not subject to health care benefit) to the basic amount, and set the estimated amount by dividing the difference between the basic amount and the estimated amount by the “basic amount” at an appropriate level below (hereinafter referred to as the “basic amount”).

4) As of the basic price determined by the Ulsan National University Hospital (hereinafter referred to as the “the difference between the basic amount and the bid amount”). (6) The annual details of the bid price and the bid price of medicines by the Ulsan National University Hospital from 2004 to 2009 are as follows: (G means the group) from 2006 to 2008, the bid price was determined at least three times by dividing the basic amount by the ‘the bid price'; and (3) the difference between the basic amount and the bid price by the ‘the lowest bid price' was divided by the ‘the lowest bid price'. (6) From 2006 to 2008, the hospital of Ulsan National University did not undergo the final bid price at least three times after the final bid price was scheduled.

A person shall be appointed.

D. The plaintiff's act

① In 206, the Ulsan National University Hospital reduced the number of groups from 5 existing groups to 3,00. Accordingly, two of the pre-determined wholesalers lost opportunities to supply drugs, and two of the pre-determined wholesalers, including a large number of items that they did not deal with, thereby causing the burden to be supplied with drugs from the pharmaceutical companies that did not deal with the pre-determined items. Furthermore, as the scheduled rate of bid price in 2006 increased from 0% in 2005 to 7%, the pre-determined bid rate was increased from 4% in 2005 to 6.4% in 200, and the continuous bid competition would decrease from 6.6% in 206 to 6.6% in 206 to 36.6% in 206 to 36.6% in 206.

③ According to the above agreement, a wholesaler who has been awarded a successful bid among the bidders, etc., purchased and supplied medicines that he/she had traded with a pharmaceutical company as previously previously, and such medicines were supplied with the successful bid price from other wholesalers, such as the Plaintiff, etc. who had transacted with the existing pharmaceutical company, and then remitted the amount to other wholesalers. The detailed details are as follows: with respect to the purchased medicines in 2006 (from July 1, 2006 to June 30, 2007) of the Ulsan National University Hospital Hospital, the detailed details are as follows: the detailed details are as follows: (i) the details of the settlement of the price of the successful tender in 2006 (from June 30, 2007 to June 30, 2008); (ii) the details of the price of the successful tender in 207 (attached Form 3) and the calculation of the price of the drugs in 207 and the details of the successful tender in 208 (attached Form 4308.6.4).208).

E. The Defendant issued a corrective order and a penalty surcharge payment order against the Plaintiff on the ground that “the Plaintiff violated Article 19(1)9 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) by complying with the aforementioned agreement and agreement as agreed upon by the Plaintiff” (hereinafter “instant disposition”).

[Reasons for Recognition] No dispute, Gap 1, 3, 11, 12, Eul 3-1, and Eul 2-2, the fact-finding results on the director of the Ulsan National University Hospital, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Whether procedural defects are procedural defects

1) The plaintiff's assertion

In the examination report, the defendant specified the plaintiff's act as a violation of Article 19 (1) 8 of the Fair Trade Act (competence), and deliberated only on it at the plenary session, the disposition in this case was taken as a violation of Article 19 (1) 9 of the Fair Trade Act (other obstruction of business activities) and did not give the plaintiff an opportunity to present his opinion on the obstruction of business activity. Thus, the disposition in this case has procedural defects that infringe the plaintiff's right of defense and the disposition in this case is unlawful.

2) Relevant legal principles

Article 49(3) of the Fair Trade Act provides that the Fair Trade Commission shall give the parties concerned an opportunity to state their opinions before taking corrective measures or imposing penalty surcharges on a violation of the Fair Trade Act. Article 52(1) provides that the parties concerned may attend a meeting of the Fair Trade Commission to state their opinions or submit necessary materials. Article 55-2 of the Rules on the Operation of Meetings and the Procedure for Cases (Notice No. 2011-8 of the Fair Trade Commission, Sept. 7, 201) provides specific procedures for giving written notice and the opportunity to state opinions. The purport of these provisions is to ensure that the parties concerned who are not injured due to the corrective measures or the order to pay penalty surcharges may attend the deliberation of the Fair Trade Commission and exercise their right to defense against the examiner's results after attending the deliberation of the Fair Trade Commission, and that the Fair Trade Commission shall not be exempted from the procedure of examination by ensuring that the parties concerned are more specifically aware of the facts after lawful examination procedures, and thus, the Fair Trade Commission shall not be exempt from the procedural revocation of Article 20(1).20(2) of the Fair Trade Act.

3) Facts of recognition

① In the review report sent to the Plaintiff prior to the instant disposition, the Defendant stated that “A wholesaler who did not receive the bid price, supplied the drugs supplied by the Plaintiff as favorable terms from the pharmaceutical company to the bid wholesaler who received the bid price without fees, and agreed that the bid wholesaler who received the bid price would settle the price after the contract.” The Defendant stated that such agreement might substantially restrict competition in a particular business area such as the bid.

In addition, the plaintiff appeared at the plenary session of the defendant, and expressed his opinion to the effect that the above agreement and the speculative transactions are not unlawful. [The grounds for recognition] The plaintiff is written in the evidence Nos. 3 and 12.

4) Determination

Before the instant disposition, the Defendant notified the Plaintiff by pointing out the contents of the instant agreement in the examination report as above, and the Plaintiff made a full statement about the instant agreement at the plenary session of the Defendant. Thus, even if the Defendant took the instant disposition by applying any provision different from that of the Defendant’s examiner, it cannot be deemed that the Plaintiff’s right to defense was infringed. The Plaintiff

(b) the existence of an agreement;

1) The plaintiff's assertion

Although the Plaintiff et al. agreed to engage in any wholesale transaction on June 13, 2006, which is the day following the termination of the tender in 2006, the Plaintiff et al. did not reach such agreement in 2007 and 2008. The instant disposition based on the premise that an agreement was reached in 2007 and 2008 is illegal.

2) Determination

The unfair collaborative act under the Fair Trade Act is established when enterprisers agree to perform the act stipulated in the subparagraphs of Article 19(1) of the Fair Trade Act. This agreement does not include an express agreement, but includes an implied agreement.

According to the facts acknowledged earlier, the Plaintiff et al. agreed on June 13, 2006, which was the day following the third bidding date of the Ulsan National University Hospital in 2006, and on June 13, 2006, the said agreement was maintained in 2007 and 2008 and the bid and supply was conducted. The other Plaintiff’s assertion is without merit.

1) The plaintiff's assertion

The plaintiff et al. agreed on the normal wholesale transaction, and the agreement of this case does not constitute an agreement interfering with business activities.

2) Determination

Article 19(1)9 of the Fair Trade Act provides that "an act practically restricting competition in a particular business area by preventing or restricting the business activities or business activities of another enterpriser (including an enterpriser who has committed such act) jointly with another enterpriser as one of the unfair collaborative acts." Thus, the act of restricting business activities between enterprisers who have participated in the collaborative act constitutes restriction on business activities.

The agreement of this case by the plaintiff et al. is not only to restrict the business activities of the plaintiff et al. between the enterprisers who participated in the agreement of this case by receiving the successful bid price from the other enterprisers who participated in the agreement, thereby not keeping mutual benefits between them, but also to restrict transactions with pharmaceutical companies or wholesalers other than the wholesalers who participated in the agreement of this case regarding the supply of the Ulsan National University Hospital. It is also to restrict the supply of the items to be supplied to the existing parties by guaranteeing the mutual supply of the items to be supplied. Accordingly, the agreement of this case constitutes an act restricting business activities. The other plaintiff's assertion is without merit.

D. Whether competition restriction exists

1) The plaintiff's assertion

① The market related to the collaborative act of this case is a national drug wholesale market. Since the market share of the Plaintiff, etc. is less than 7.4% and is less than 20%, the act of the Plaintiff, etc. does not

② The wholesale transaction by the Plaintiff, etc., made it possible for a successful bidder to participate in a bid at a lower price by lowering the burden of new transaction with a pharmaceutical company, thereby promoting competition in the bidding, and actually raising the lower rate of the successful bidder up to 7%.

2) Determination

As seen earlier, the Plaintiff et al. agreed in this case to restrict competition in the bidding market for the purchase and admission of the Ulsan National University Hospital by restricting mutual business activities. As such, the relation to the collaborative act in this case

The Mayor is a bid market for the purchase of the Ulsan National University Hospital. Therefore, the plaintiff's assertion that the relevant market of the collaborative act in this case is a national drug wholesale market is without merit.

In addition, the agreement of this case is likely to restrict competition in the purchase bid market of the Ulsan National University Hospital by allowing the plaintiff, etc. to supply items to the pre-existing Ulsan National University Hospital according to the successful bid price, among the plaintiff, etc., as well as to restrict competition in the purchase bid market of the Ulsan National University Hospital, and even if the contract is concluded through a separate negotiation individually as a result, the price may no longer be reduced (However, the agreement of this case was reached on the following day of the third bidding of the Ulsan National University Hospital on March 2006, and the Ulsan National University Hospital was selected as a successful bidder at the lowest price at the time of the final bidding without going through the Do negotiation procedure, and the agreement of this case did not result in restricting competition in the selection of the successful bidder at the time of the final bidding in 206.

Although competition was promoted by the agreement of this case on the ground that the successful bidder rate was higher than 7% in 2007 and 2008, the successful bidder rate was higher than the successful bidder rate in 2007 and 2008. However, the successful bidder rate was higher than the successful bidder rate in 2007 and 2008 when the public tender of this case was conducted by the Ulsan National University Hospital (i.e., setting a higher rate of scheduled bid rate) and cannot be deemed to have been caused by the collaborative act of this case. The plaintiff's assertion that the collaborative act of this case did not be restricted is without merit. If there was no collaborative act of this case, there was sufficient possibility that the successful bidder will be a successful bidder rate higher than the scheduled bid rate in 207 and 2008 in 209.

E. Whether it is improper

1) The plaintiff's assertion

Even if the act of the plaintiff et al. is likely to restrict competition, it contributed to the health care and insurance finance, and there was no risk of delay in the supply that may occur in new transactions with the pharmaceutical company, so efficiency increase effect does not constitute an unfair act.

2) Determination

There is no evidence to deem that the instant collaborative act by the Plaintiff, etc. contributed to the finance of health care and insurance. Meanwhile, even if the instant agreement does not have the risk of delaying the supply, considering the fact that the Plaintiff, etc. could participate in the bidding in 2007 and 2008 after preparing to be supplied by a pharmaceutical company or another wholesaler without the instant agreement, and that there was no problem of delaying the supply, the risk of delay cannot be deemed to have ceased to exist only when the instant agreement was reached. Therefore, the effect of efficiency increase due to the instant agreement cannot be deemed to exceed the anti-competitive effect prior to such agreement. The Plaintiff’s assertion on this part is without merit.

F. Whether the calculation of a penalty surcharge is lawful

1) The plaintiff's assertion

Since the agreement of this case was made after the completion of the purchase bid in 2006 at the Ulsan National University Hospital, the sales amount generated by the bidding in 2006 should be excluded from the relevant sales amount.

2) Determination

On June 13, 2006, the date following the final bidding date of the Ulsan National University Hospital, the agreement of this case was reached, and the Ulsan National University Hospital selects a wholesaler who failed to meet the lowest price at the time of the final bidding without undergoing a separate negotiation procedure, and the successful bidder at the bidding in 2006 did not have the effect of restricting competition by the agreement of this case in the selection of successful bidder at the bidding in 2006. Thus, the sales from the bidding in 2006 of the Ulsan National University Hospital must be excluded from related sales. The Plaintiff’s allegation in this part is with merit.

G. Sub-determination

Therefore, the order of penalty surcharge payment, including the sales from bidding in 2006, among the dispositions of this case, should be revoked as it is illegal, but the corrective order is still lawful even if considering the above point.

3. Conclusion

Therefore, the part of the plaintiff's claim seeking cancellation of the penalty surcharge order is accepted for reasons, and the part seeking cancellation of the corrective order is dismissed for reasons.