In a case where a business entity with a high market share in the over-market has determined its own price in advance, and a business entity is aware of all the circumstances because such a practice has accumulated for a considerable period of time, whether a “agreement on an act of unfairly restricting competition” as prohibited under Article 19(1) of the Monopoly Regulation and Fair Trade Act may be acknowledged if communication related to the price determination is proven or it can be ratified (affirmative)

Articles 19(1) and 66(1)9 of the Monopoly Regulation and Fair Trade Act

Supreme Court Decision 2012Du17421 Decided November 28, 2013 (Gong2014Sang, 1212) Supreme Court Decision 2012Du13665 Decided May 16, 2014

Defendant corporation

Defendant

Attorney Wil-he

Seoul Central District Court Decision 2013No444 Decided April 19, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 19(1) of the Monopoly Regulation and Fair Trade Act prohibits “an agreement on an act that unfairly limits competition” includes not only the express agreement but also implied agreement. Here, the essence of the agreement lies in the communication between two or more enterprisers. As such, it cannot be deemed that there was an agreement as a matter of course on the ground that there exists a appearance consistent with the act listed in any subparagraph of the above provision, but it can be deemed that there was an agreement if there is a proof of a circumstance to acknowledge the reciprocity of communication among enterprisers (see, e.g., Supreme Court Decision 2012Du17421, Nov. 28, 2013).

Therefore, after the company with high market share in the over-market market has first determined its price based on its independent judgment, other competitors are confiscing their price, and business entities are aware of all these circumstances as the price-fixing practice has accumulated for a considerable period of time, if communication related to the pricing can be proven or if communication related to the pricing can be ratified in light of various additional circumstances, there can be an agreement on an act of unfairly restricting competition.

2. According to the reasoning of the lower judgment, the lower court found Defendant 1 and Nonindicted Company 2 guilty of the same sales price at the same price as that of Defendant 1 and Nonindicted Company 1 (hereinafter “Nonindicted Company 1”), based on the following facts: (a) the Defendant and Nonindicted Company 1 entered into information exchange on the base price, which is the basis of the sales price within the collusion period, among employees in charge of Nonindicted Company 1 and Nonindicted Company 1; (b) the domestic LPG market is an over-sale market with 10% share of the Defendant, etc. (hereinafter “4 companies except for two imports”), and determined the same sales price at the same price as that of Defendant 1’s 2G sales price at the same price for the same time as that of the instant LPG products; and (c) the Defendant, based on the fact that there was no special circumstance that the 2G market share was determined by the same as that of the Defendant’s 3G market share at the same time as that of the Defendant’s 2G market share at the same price.

In light of the above legal principles and records, the above judgment of the court below is just and there is no error of law by misunderstanding the legal principles as to the agreement of unfair collaborative acts, thereby failing to exhaust all necessary deliberations or exceeding the bounds of the principle of free evaluation of evidence against logical

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)