Samd Enterprise Co., Ltd. (Law Firm LLC, Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Song, Attorneys Yellow-hun et al., Counsel for the defendant-appellant)

September 30, 2016

The plaintiff's claim is dismissed.

Costs of lawsuit shall be borne individually by each person.

The defendant's decision that the corrective order in attached Form 1 and the penalty surcharge payment order in attached Form 2 (attached Form 2) that the defendant issued to the plaintiff as the 2015-251 of the Fair Trade Commission's decision on July 20, 2015 is revoked

1. Basic facts and circumstances of dispositions;

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 4 evidence, purport of the whole pleadings

A. The status of 22 plaintiffs, etc.

1) The Plaintiff, 20 Heavy Industries Co., Ltd. (hereinafter referred to as “stock company” in the name of the company”), Hyundai Construction, KS Construction, Hyundai Heavy Industries, Hyundai Heavy Industries, Samsung Cream Industries, Samsung Products Construction, Treatment Construction, Spot Construction, Gold Industry, Hanyang Construction (hereinafter referred to as “existing 12 copies”) dopco, dopco, Gyeongnam Enterprises, Gyeongnam Enterprises, Taeju Construction, Taekk Construction, Kaek Construction, Hanan Construction, Gak Construction, Karan Construction, Kachik Construction, Madern Construction, Posc Engineering (former 12 copies and results) and 12 new comprehensive construction (hereinafter referred to as “2 companies including the Plaintiff”) constitute a business entity under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the “Fair Trade Act”).

2) The general status of the Plaintiff (standard: the end of 2014, unit: million won) is as follows.

In the case of Plaintiff 49,777 19, 402 5, 18, 835 △△△276, 690 △△279, 681 △△66, 133, 201, 2013, 2014, 49, 777, 18, 835, 279, 681, 201

(b) Tender documentations for construction works of natural gas main pipelines and management offices ordered by the Korea Gas Corporation;

(i) bidding methods and tendering procedures;

(1) Major pipes and Note 2) The Korea Gas Corporation is a supply facility that the Korea Gas Corporation constructs and operates in order to supply natural gas to power plants and urban gas companies that are large consumers. The Korea Gas Corporation has ordered construction projects from around the end of 2008 to April 2009, and has ordered construction projects in full scale from around August 2012 to August 2012, 29 (17, 2009, 1, 2011, 8, 2012, 3, 2012). Among them, 22 companies, including the Plaintiff, etc., participated in the bidding after prior agreement on the division of sections, construction sections, successful bidder of each construction section, and bid rate, etc., the Korea Gas Corporation is an integrated energy supply facility (209) construction project, 210, 2010, 261, 261, 206, 36, 206, 206, 26, 26, 36,

. 209. 209. 2009. 10. 21. 2009. 1, 200,000,000,000,000. 1. 2. 2. 1,000,000,000,000,000. 2. 1. 2. 1,000,000,000,0000,0000.00.000.00.000.00.00.00.00.00.00.00.00.0.0.00.00..00..00.0..00.0.0..00.0..00. 1.01.0.0. 1,000,000,000,000

(ii) bid collusions related to 16 construction works ordered in 209.

A) Around January 2009, the Korea Gas Corporation publicly announced 17 construction sections through an annual order ordering plan. Around March 2009, the employees in charge of the business of 12 companies were gathered around March 2009 or around April 2009, and agreed on the bidding of 16 sections of the said 17 construction sections (hereinafter “the first main pipes construction”) with the exception of “construction works of through-house pipelines” among the said 17 construction sections (hereinafter “the first main pipes construction”).

B) On April 17, 2009, when the Korea Gas Corporation announced the construction of natural gas pipelines and control stations of the 17 construction sections, 22 companies, including the Plaintiff, were fully qualified to participate in the bidding, unlike the previous bidding. The 12 existing performance records were distributed to 12 companies as to the 16 construction sections immediately after the public announcement of the tender, and the remaining 4 construction sections were allocated to some companies among the newly qualified companies, and the 22 companies agreed to make a final decision again.

C) Accordingly, 21 companies, including 12 existing 12 companies and 10 new 10 companies with new performance results, including 9 companies (hereinafter “new performance 9 companies”) from April 14, 2009 to April 17, 2009, were discussed as follows: ① 12 existing performance 12 companies among 16 construction sections have been allocated one unit of construction section; ② The remaining 4 sections are divided into 16 construction sections,

D) After the first collaborative act, 16 companies that received tools distributed from the first collaborative act separately gathered and determined their respective bid bid rates by drawing lots. 22 companies, including the Plaintiff, etc., including the Plaintiff, etc., failed in accordance with the agreement reached between the first collaborative act and the Korea Gas Corporation on May 21, 2009, the bidding date, and the successful bidder entered into a contract for individual construction works between each of the parties and the Korea Gas Corporation on June 10, 2009.

E) The Plaintiff participated in the bid of the “Yecheon-Yeong-Yeong-Yeong-Yeong-Yeong-Yak-Yeong-Yak-Yak-Yak-Yak-Yak-Yak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak-Sak

3) Bidding collusion related to ten construction works ordered from February 2, 2011 to August 2012

A) From February 2, 2011 to August 2012, the Korea Gas Corporation announced 11 major natural gas pipelines and management stations construction sites of 11 construction sections. As such, 12 existing performance history and 17 new companies (hereinafter “17 companies, including the Plaintiff, etc.”) such as dopco, dopco, chines integrated construction, and alternative construction (hereinafter “Plaintiff, etc.”) agreed in advance on the bidding of 10 sections of the said 11 sections (hereinafter “2 main pipe construction”) excluding “construction facilities for the multi-combined chemical power supply facilities” among the said 11 sections (hereinafter “2 main pipe construction”), the bid rate is at least 80% as in the first portion of the bid, and the bid rate is at least 20% as in the case of the construction ordered in order, and the bid price is awarded only once after the bid bid is awarded, regardless of the representative of the successful bidder, and the bid bid bid bid will.

B) At each time the bid by section of the second main pipeline construction is publicly announced, 17 companies, including the Plaintiff, etc. entered into an agreement by setting in advance the successful bidder and the bid rate based on the second collaborative act, and by participating in the bidding at a predetermined bid rate after making an individual agreement to participate in the bidding by companies other than the successful bidder.

C) On July 18, 2011, the Korea Gas Corporation publicly announced the bidding of the Section “Sljin-Yuk River Construction Project,” the third among the main pipes construction works, the 11 practitioners, such as the Plaintiff, 2 industry, gold industry, dopco, dopco construction, ice construction, ice construction, new construction, ice construction, Chinese chemical construction, and Gyeong Construction, etc., which were not awarded a bid in the bid for the Section 5). On July 18, 2011, the Plaintiff was a group for the prospective successful bidder in the vicinity of the Seoul Station and around July 8, 2011. The Plaintiff’s share was determined as the successful bidder (the Plaintiff’s share is Plaintiff 50%, dopco, 35%, 15%, Pacific construction).

D) On the other hand, the Plaintiff participated in the construction section bidding in the “Cheongra Management Office”, “Yeong-Seong-Seong-Seong-Seong-Seongheadheadheadhead pipe”, “Yeong-Yeong-Junghead pipe Section 1”, and “Yecheon-Secheon Industrial Complex Supply Pipelines”, respectively, and the joint supply and demand organization that is the representative of the Plaintiff participated in the construction section bidding in the “Teocheon Innovation City Integrated Energy Supply Site” bid.

C. The defendant's corrective order and penalty surcharge payment order

1) Details of the corrective order and penalty surcharge payment order

The Defendant issued a corrective order (hereinafter “instant corrective order”) and a penalty surcharge payment order to the Plaintiff on July 20, 2015 pursuant to the public notice on the imposition, etc. of penalty surcharges under Article 22 and 55-3 of the Fair Trade Act, Article 61 and attached Table 2 of the Enforcement Decree of the Fair Trade Act, Article 61 and attached Table 2 of the former Enforcement Decree of the Fair Trade Act (amended by the Fair Trade Commission Notice No. 2012-25 of June 5, 2013; hereinafter “public notice of penalty surcharges”) on the grounds that the first and second collaborative acts of the Plaintiff et al. of this case constitute Article 19(1)8 and 3 of the Fair Trade Act.

2) Grounds for calculating penalty surcharges against the plaintiff

The defendant issued an order to pay a penalty surcharge of KRW 7440 million to the plaintiff as stated in paragraph (3), and the grounds for calculating the penalty surcharge against the plaintiff are as follows.

A) Criteria for calculation

The relevant sales shall be deemed the sum of the contract amounts of the construction sections participating in the bidding during the instant construction project or participating in the bid: Provided, That where a joint supply and demand organization is organized to participate in the bidding, the participation in the bidding, the bid price, etc. shall be determined by the representative of the joint supply and demand organization, and the participation in the bidding shall be excluded in the case of the joint supply and demand organization as a hub of the joint supply and demand organization, considering

On the other hand, considering the content and ripple effect of the collaborative act in this case, since the degree of gravity of the act constitutes "seriously serious violation", the imposition rate of 7-10% shall be applied in accordance with the provisions of 4.1.1.c. (1) (a) of the penalty surcharge notice. However, the collaborative act in this case is an obvious speculative collaborative act that only causes competition-restricting effect as a bidding collusion, and the construction in this case shall apply 10% imposition rate in comprehensive consideration of the fact that it has a significant impact on the national finance as a large public project.

6,727,461,818 10% of the successful bid (representative company) of the first lowest bid (representative company) of the section 66,727,46,182, 746,182 15,621,6402,7272,727 100% of the second lowest bid (representative company, representative company), 727 79,374,210,000 7,937,421,000 10% of the second highest bid (representative company, main contract), 437,410,000, 2100,50% of the successful bid of the section 43,410,000, 2170,50,500,0030,0030,000 of the first highest bid (representative company), 15,4284,284,2984,284,2000

Note 6) Whether to award a contract

B) Adjustment of criteria for calculation

In consideration of the fact that the plaintiff consistently recognized the facts of the act from the investigation stage to the completion of the deliberation by the commission, and cooperates in the investigation, such as making statements helpful to determine illegality, the penalty surcharge IV.3.C. (3)(a) shall reduce 30% of the standards for calculation in accordance with the provisions of

30% reduction by 30% reduction by 4,621,402,727 can be 30% reduction by 30% reduction by 32,634,981,909 of the second successful bid (representative, representative contract) 7,937,421,00 of the second successful bid (representative, representative contract) 5,556,194,700 Slur 2,170,50,500, 30% reduction by 1,672,519,350,300 (main contract)

C) Determination of imposition penalty surcharges

Considering the fact that the amount of the construction section excluded from the bid price in the Plaintiff’s relevant sales exceeds the amount of the construction section awarded, that all of the bid price was awarded, that the Korea Gas Corporation participated in the bid by organizing a consortium, and that the Korea Gas Corporation entered into a contract for one of the second main pipeline construction works with a "main contractor management method", the adjusted calculation criteria are the aspects that the respondent did not fully reflect the amount of profit acquired due to the violation. Therefore, 30% for the portion of the participation, 10% for the portion awarded as the consortium representative, 5% for the bid employed the main contractor management method, and 70% for the portion awarded as the main contractor management method, and 5% for the bid employed by the main contractor management method in the financial statement in 2014, 10% for the Plaintiff has been reduced, and 10% has been further reduced due to the deterioration of the construction market due to the competition.

The first successful tender (representative) of the aggregate of the amount calculated by calculating the capacity to bear for the construction of the main contract method under the principle of proportionality, 4,670,922, 327- - 10,000 - 467,000 - 32,634,981,9090 - 30 - 100 - 5,556,194, 700 - 00 -2 - 00 -2 5,56,194, 700 - 100 - 200 -2 5,000 - 100 - 700 - 705,007 - 107 - 305 -405 -6305 -405 -605 -107 -605 -400

(d) Partial revocation of a penalty surcharge payment order;

The Defendant revoked ex officio the amount of penalty surcharge of KRW 467 million, which is the amount of penalty surcharge related to the primary collaborative act, among the order to pay penalty surcharge of KRW 74 million against the Plaintiff, as prescribed by the Decision No. 2016-146, May 26, 2016 (hereinafter “instant order to pay penalty surcharge of KRW 270 million remaining after ex officio revocation”) (hereinafter “instant order to pay penalty surcharge of KRW 270 million”).

2. Whether the corrective order of this case is lawful

A. Summary of the plaintiff's assertion

The Defendant’s investigation into the first collaborative act began around October 2009, upon receipt of a report on the first collaborative act by the Korea Gas Corporation. As to the first collaborative act, the provisions of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Mar. 21, 2012) were applied to the first collaborative act, and the period of prescription on May 21, 2014, which was five years after the end of the first collaborative act, expired. Accordingly, the instant corrective order on the ground of the first collaborative act is unlawful and thus should be revoked.

B. Determination

Even if some of the grounds for an administrative disposition are lawful, where the legitimacy of the disposition is recognized as the grounds for another disposition, such disposition shall not be deemed unlawful (see, e.g., Supreme Court Decisions 96Nu1184, May 9, 1997; 2013Du963, Oct. 24, 2013).

According to the facts established earlier, the grounds for the disposition of the instant corrective order are the primary and secondary collaborative acts. However, it is evident in the record that the Plaintiff did not dispute the existence of the secondary collaborative acts, and that the period of extinctive prescription for the second collaborative act was not excessive. Therefore, even if the instant corrective order based on the first collaborative act is deemed lawful by accepting all of the Plaintiff’s assertion, even if the instant corrective order based on the first collaborative act is deemed lawful, the instant corrective order based on the second collaborative act cannot be deemed unlawful.

Therefore, this part of the plaintiff's assertion is without reason as to whether the prescription period for the first collaborative act has expired.

[B] We examine whether the statute of limitations has been completed for the primary collaborative act of this case. Thus, a report on a violation under Article 49(2) of the Fair Trade Act is a proviso to urge the Fair Trade Commission to initiate an ex officio action. Barring special circumstances, such as where the contents of the report accepted by the Fair Trade Commission deviate from or abuse of discretionary power and did not deal with as the proviso to the investigation, the date of receipt of the report should be deemed the date of commencement of the investigation. Thus, if the Fair Trade Commission could not process as the proviso to the investigation of the violation of the Fair Trade Act due to the reason that the violator or the contents of the violation were not specified as a reasonable discretion after analyzing the contents of the report accepted by the Fair Trade Commission, the date of receipt of the report can not be deemed the date of commencement of the investigation immediately. In addition, where the investigation of the violation of Article 19(1)2 of the Fair Trade Act was not commenced, the "date of the violation" as provided for in Article 49(4)2 of the Fair Trade Act should be determined based on the specific agreement between 205 and 25.

According to the evidence evidence evidence Nos. 3 through 9, under the circumstances to be suspected that there was the total tender documentation for the primary pipeline construction works conducted by the Korea Gas Corporation in the inspection of the state of the National Assembly Knowledge Economy Committee on October 7, 2009 by the Korea Gas Corporation, which was held on October 7, 2009, the bid price rate higher than the bid price rate in the bidding process conducted by other minimum successful bid bid system was pointed out. Accordingly, on October 16, 2009, the Korea Gas Corporation notified the Defendant on October 16, 2009 of the possibility that it was possible for the first primary pipeline construction works as above and the bid result shown in the above documents to request the Defendant to conduct a collaborative investigation, even though there was no evidence to acknowledge the fact that the Defendant was investigating upon receiving the above report.

In light of the above facts in light of the above legal principles, the Korea Gas Corporation's above inquiry did not specify the violator and the contents of the violation to be equipped as a report under Article 49 (2) of the Fair Trade Act, and the defendant did not deal with them as a proviso to the investigation of the violation of the Fair Trade Act based on the above inquiry, and it does not constitute an unlawful act of deviation or abuse of discretionary power. Thus, it cannot be viewed as the commencement date of investigation, which is the starting date of the exclusion period of

Therefore, the first collaborative act by the Plaintiff, etc., was conducted after June 22, 2012, when the exclusion period was changed from "five years from the date of termination of the act" to "five years from the date of investigation," and the first collaborative act by the Plaintiff, etc., it becomes subject to the changed exclusion period. Meanwhile, the Defendant’s corrective order against the first collaborative act by the Plaintiff was issued as of July 20, 2015, it is obvious that five years have not elapsed since the commencement of the act, which is the date of commencement of the investigation, and that the Defendant’s corrective order against the first collaborative act by the Plaintiff, etc. was made as of July 20, 2015. The Plaintiff’s violation of this part was terminated on June 10, 2009, and thus, the Defendant’s corrective order was not passed seven years since the date of completion of the act. Accordingly, the Plaintiff’s aforementioned assertion appears to have no merit.

3. Whether the instant order to pay penalty surcharge is lawful

A. Summary of the plaintiff's assertion

The instant penalty surcharge payment order is unlawful for the following reasons, and thus, should be revoked.

1) misunderstanding of the termination date of the second collaborative act

Since the Plaintiff did not participate in the bidding of three sections of the second pipe construction works for which bidding was publicly announced on August 8, 2012 (hereinafter referred to as “subvening sections”), the Plaintiff’s second cartel conduct was terminated on January 13, 2012, which is the date of bidding of the sections of the construction in which the Plaintiff participated in the bidding. Accordingly, the instant order to pay the penalty surcharge, which is based on the premise that the termination date of the second pipe cartel conduct was September 21, 2012, is unlawful.

2) Extinguishment of a claim for penalty surcharge

The Plaintiff’s second collaborative act was terminated before the decision on commencing the rehabilitation procedure for the Plaintiff ( July 23, 2012), and thus, the Defendant’s claim on the second collaborative act constitutes rehabilitation claims, and the Defendant’s claim on the second collaborative act is terminated after the decision on commencing the rehabilitation procedure for the Plaintiff. Even if the termination date of the second collaborative act is September 21, 2012, the Plaintiff’s claim on the penalty surcharge against the construction section, which was made prior to the decision on commencing the rehabilitation procedure, constitutes rehabilitation claims, and all the Defendant’s claim on the second collaborative act is extinguished. Therefore, the instant order on the payment of penalty is unlawful as a disposition based on the extinguished claim

(iii) the deviation and abuse of discretionary authority;

Even if the claim for penalty surcharge is not extinguished, ① it is against the principle of proportionality to impose penalty surcharge on the Plaintiff even though the Plaintiff was unable to pay penalty surcharge objectively due to extreme financial difficulties, and ② it is against the principle of equality to exempt the Plaintiff from penalty surcharge even though the Defendant was exempted from penalty surcharge on the grounds that the Defendant is obliged to repay obligations according to the rehabilitation plan with respect to other cases and other business entities in this case or that the corporate rehabilitation procedure is in progress. Therefore, the order to pay penalty surcharge in this case is in violation of the principle of equality.

B. Relevant statutes

[Attachment 3] The entry of relevant Acts and subordinate statutes are as follows.

C. Determination

1) Termination date of the second collaborative act

In cases where enterprisers have reached an agreement on the basic principles of unfair collaborative acts and continued several agreements in the course of their implementation, if each agreement has been implemented for the same purpose on the basis of a single intent, and without being cut off, it is reasonable to view the series of agreements as a whole as one unfair collaborative act, barring special circumstances (see, e.g., Supreme Court Decisions 2007Du3756, Sept. 25, 2008; 2008Du16179, Jan. 30, 2009).

Article 19(1)1 of the Fair Trade Act refers to the date on which an unfair collaborative act is terminated, not to the date on which the agreement was reached, but to the date on which the implementation by the agreement was terminated. This legal doctrine applies even where there was a bid collusion on the determination of successful bidders, successful bidders, bidding price, etc. as prescribed by Article 19(1)8 of the Fair Trade Act, and the implementation by the bidding price, and where there was an act of implementation based thereon, it shall be determined individually and specifically for each case on the basis of the contents of the agreement in question, comprehensively considering various factors, such as the specific scope and manner of the intended implementation, and the occurrence of a conclusive effect of competition restriction pursuant to the agreement, etc. (see Supreme Court Decision 2015Du37396, May 28, 2015). In addition, even if there was an agreement on restrictions on transactions as prescribed by Article 19(1)3 of the Fair Trade Act and the act of implementation by the bidding price, and thus, it should be determined on the basis of the agreement.

The facts acknowledged earlier, in light of the legal principles as seen earlier, Gap evidence Nos. 10 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 3, 8, 9, 11, 22-28, and 32, and the fact-finding results with respect to the Korea Gas Corporation and the following circumstances acknowledged by the overall purport of the pleadings, etc., the second collaborative act is deemed to have been terminated on Oct. 18, 2012, which is the date on which the last bidding was concluded among the second main pipe works, and thus, it cannot be deemed unlawful on Sep. 21, 2012, which is the date on which the defendant's final bid was made, as the termination date of the instant collaborative act. Thus, the plaintiff's assertion disputing this point is without merit.

A) As to the tendering procedure for the second main pipeline construction, 17 companies including the Plaintiff, etc.: (a) agreed on the basic agreement that “(i) the construction works ordered in the order of order are allocated by drawing lots; (ii) the bid rate is at least 80% as in the first collaborative act; (iii) the representative company, and in the case of being awarded a bid once regardless of scopic intent, the bid price shall be no longer awarded in the subsequent bidding; and (iv) the individual agreement that determines successful bidder, bid price rate, and scopic shall be implemented based on the above basic agreement whenever the bidding for each construction section is publicly announced. Such individual agreement was made in the process of implementing the agreement on the basic principles, and it continued without reducing the bid price by avoiding competition related to the second main pipeline construction works; and (v) the said series of agreements have been concluded only after all the basic collaborative acts under the basic agreement are terminated.

B) The contents of the second collaborative act are agreements on successful bidders, bid bid rates, etc. in bidding, and at the same time, 17 companies, including the Plaintiff, etc., have agreed to restrict the trade volume by obtaining a successful bid by dividing into construction sections, and thus, the agreement on the division of volume (construction sections) under subparagraph 3 of Article 19(1) of the Fair Trade Act is concluded. In addition, even though 10 successful bidders, including bid sections which have not participated in bidding, should be awarded only once more than 17 companies, including the Plaintiff, etc., who participated in the second collaborative act, participate in the second collaborative act, as the primary purpose of the basic agreement on the division of construction sections, are to receive a successful bid as the representative or sub-contractor. In full view of the contents of the said agreement and the fact that all the participating enterprisers including the Nonparty, etc., including the Plaintiff’s employees, were aware that all the two participating enterprisers were “when all participating in the second collaborative act was awarded a successful tender once in the second construction section or “after bidding,” all of the two construction sections are to be considered as the participation in bidding.

C) The Plaintiff did not express or implied declaration of intention to withdraw from the second bidding agreement, and did not commit any act contrary to the agreement by its own judgment. The time when the Plaintiff’s collaborative act terminated is consistent with the termination date of the second bidding by all the enterprisers. As to this, the Plaintiff asserts that the Plaintiff went away from the agreement by failing to participate in, or by failing to participate in, the successful bidder’s decision regarding the non-participation in the bidding. However, the 17 companies, including the Plaintiff, have already agreed on the basic agreement on the construction of the second main bidding, and the 17 companies, including the Plaintiff, have already participated only in, a meeting which determines the successful bidder regarding the individual bidding as the successful bidder, but has already failed to participate in, and has yet to receive, the successful bidder as the successful bidder. ② The Plaintiff agreed on the remaining enterprisers who have been selected as the successful bidder in each bidding to participate in the bidding without any specific agreement on the participation in the bidding and to cooperate in, at any time, with such a different agreement on the participation in the bidding, even if the Plaintiff did not participate in the bidding agreement.

D) On July 23, 2012, the Plaintiff asserted that the Plaintiff withdrawn from the collusion due to the lack of intent and ability to participate in the collusion after the commencement of rehabilitation procedures, or that the withdrawal from the collusion was excluded from the collusion from other enterprisers. However, it is more so in light of the Plaintiff’s rehabilitation procedures’s early termination of the period of six months after the commencement of rehabilitation procedures. In addition, even if a company is in default as of the closing date of the application for participation in the bidding section, its current account transactions with the main trading bank can be conducted under the status of the court’s decision on commencement of legal management or the decision on commencement of composition, and the issuance of a letter of guarantee issued by the guarantee from the guarantee institution is qualified to participate in the bidding. Meanwhile, the Plaintiff’s intent and ability to conduct such collaborative act was sufficient, and if the Plaintiff received a request for participation, it is difficult to deem that the Plaintiff refused to participate in the decision on commencement of rehabilitation procedures.

E) The Plaintiff asserted that the second collaborative act was terminated on January 13, 2012, on the ground that the date and time of the crime was “from April 4, 2011 to January 13, 2012.” However, the requirements for establishment of Article 19(1)3 and 8 of the Fair Trade Act differs from the requirements for establishment of the said criminal case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case is not consistent with the contents and scope of the second collaborative act’s criminal case’s criminal case’

2) Whether a claim for penalty surcharge expires

In full view of the following facts and circumstances acknowledged by the facts and the purport of evidence Nos. 11-12, and No. 31 and the entire pleadings, the claim for penalty surcharge for the second collaborative act does not constitute rehabilitation claims, and thus, the instant penalty surcharge payment order is lawful. The Plaintiff’s assertion disputing this point is without merit.

A) On July 16, 2012, the Plaintiff filed an application for rehabilitation procedures with the Seoul Central District Court pursuant to the Debtor Rehabilitation Act, and received a rehabilitation decision from the above court on July 23, 2012. On December 21, 2012, the rehabilitation plan approval was issued (Seoul Central District Court 2012 Ma128), and the rehabilitation procedure was completed on January 17, 2013.

B) As seen earlier, the termination date of the second collaborative act by the Plaintiff ought to be deemed October 18, 2012, which was after the date of the decision on commencing the rehabilitation procedures ( July 23, 2012). Therefore, the Defendant’s claim against the second collaborative act by the Plaintiff constitutes “claim arising after the commencement of the rehabilitation procedures.”

C) The Plaintiff asserts that the violation of the Plaintiff, who is subject to penalty surcharge, has already been established in 2011 on the ground that the basic agreement on the second collaborative act was established in 201, was established in 201. However, since a series of agreements pursuant to the above basic agreement is a single collaborative act, the point at which the violation of Article 19(1) of the Fair Trade Act, which is subject to penalty surcharge, is established, shall also be deemed as the termination date of a

D) On the premise that the Plaintiff’s obligation to pay penalty surcharges has been established at the time of the commencement of the rehabilitation procedure for the Plaintiff on the premise that the Plaintiff’s obligation to pay penalty surcharges was established pro rataly at each time of the completion of the individual bidding, the Plaintiff asserts that the Defendant’s claim for penalty surcharges was already occurred as to the bid already made at the time of the commencement of the rehabilitation procedure for the Plaintiff, and that this part constitutes rehabilitation claims. However, this assertion is not only explicitly contrary to the nature of the second collaborative act, such as quantity distribution and bid collusion, but also the Plaintiff’s obligation to pay penalty surcharges arises only when the Plaintiff’

3) Whether the discretion is deviates or abused or not

Whether to impose a penalty surcharge on a violation of the Fair Trade Act and when imposing a penalty surcharge, the amount of the penalty surcharge within a certain scope prescribed by the Fair Trade Act and the Enforcement Decree thereof is discretionary act. However, if there are grounds such as misunderstanding of facts constituting the basis for imposing a penalty surcharge in relation to the exercise of discretion or violating the principle of proportionality and equality, it may be deemed illegal as a deviation or abuse of discretionary power (see Supreme Court Decision 2006Du4226, Feb. 15, 2008).

A) Whether the principle of proportionality is violated

The Defendant calculated the penalty surcharge against the Plaintiff in accordance with the criteria set forth in the Fair Trade Act, the Decree and the Notice of Penalty Surcharge. In particular, the Defendant reduced the penalty surcharge by 95% for one section awarded by the Plaintiff among the secondary collaborative acts, such as reducing the penalty surcharge by taking account of the Plaintiff’s practical ability to pay the penalty surcharge into account, and exempted the Plaintiff from the penalty surcharge for four sections in which the Plaintiff participated in the bidding. In addition to these circumstances, the Plaintiff’s substantial decrease in the Plaintiff’s net income amount in 2014 and the amount of the penalty surcharge finally imposed on the Plaintiff (27,00,000) is 0.56% compared to the Plaintiff’s capital in 2014, and 0.05% compared to the sales amount, it is difficult to deem that the exemption of the penalty surcharge against the Plaintiff is against the principle of proportionality. The Plaintiff’s assertion in this part of this part is without merit.

B) Whether the principle of equality is violated

According to the aforementioned facts and the overall purport of evidence Nos. 1, 17, and 18 of the Defendant’s Resolution, the remaining construction exempt from penalty surcharges pursuant to Article 2014-077 of the Defendant’s Resolution or the instant resolution (No. 2015-251) (No. 2015-251), while the Plaintiff’s rehabilitation procedure is in progress at the time of the instant resolution (as of July 20, 2015), and two years and six months have passed since the corporate rehabilitation procedure was already terminated at the time of the instant resolution (as of July 20, 2015), the Plaintiff cannot be treated together with the said business entity. Furthermore, the Defendant’s Resolution No. 2014-0788 was exempted from penalty surcharges on the act of participating in the bidding of one construction section, and some of them did not affect the Plaintiff’s act of restricting competition, etc. Accordingly, it cannot be deemed that the Plaintiff’s economic reason and administrative practice were different for each of the aforementioned business entities.

5. Conclusion

Thus, the plaintiff's claim shall be dismissed as it is without merit, and the costs of the lawsuit shall be borne by each party in consideration of the fact that part of the original claim has been withdrawn ex officio.

[Attachment Omission]

For the purpose of judge Lee e-mail (Presiding Judge)

1) It is an underground underground pipeline that supplies high-tension natural gas produced from the production base to the supply point for stable gas supply to the natural gas supply source.

Note 2) The management office is divided into a pressure control office, a blocking control office, and a block valve according to its function and use, and the pressure control office plays a role in the stable supply of natural gas that has been transported by high-tension through piping networks by reducing certain pressures required by the demand source, the blocking control office plays a role in blocking gas supply or blocking gas flow at the time of major construction works in an emergency, and the block valve plays a role as a kind of valve for prompt blocking the pipeline network when an emergency occurs.

3) In order to pass an advance examination in the main pipeline construction tender by the year 2008, the company should have the construction performance equivalent to the scale of the ordered main pipeline construction (distance) and the company meeting this requirement had no existing performance history of 12. The existing performance results were determined to apply this requirement to the tender to be ordered in 2009, and a meeting was held only by themselves.

Note 4) The Korea Gas Corporation had the capacity to participate in the bid in 2009 and 8 km or more of the capacity to participate in the construction work.

Note 5) Construction of the Cheongra Management Office and “Ying-Hing Main Pipelines Construction Works” are “Cheongra Management Office’s construction works.”

Note 6) In the case of a awarded construction section, whether it has been sobs that it was received as the representative of the consortium, and whether the principal contractor management method (the ordering person shall, while entering into a contract with the successful bidder as the principal contractor, set in advance a subcontractor a part of the subcontracted project to which the principal contractor is entrusted, and the ordering person shall make the subcontractor a direct contract with the subcontractor as the secondary contractor) has been employed.

(7) In Article 2015-251 of the resolution, the Defendant deemed the date of the first collaborative act (as of May 21, 2009), which is not the date of concluding the contract, as the date of the first collaborative act. However, according to the public notice of the Korea Gas Corporation’s tender and the bidding result report, the first main pipe construction project does not establish a contract only by bidding, but finally enters into a contract after the successful bidder is determined. Therefore, it should be deemed that the effect of unfair competition restriction by bidding collusion has become final and conclusive only on the date of concluding the contract. Even if the date of concluding the bidding was the date of concluding the contract, seven years have not

8) Seoul Central District Court 2014Kadan8232, Seoul Central District Court 2015No2440, the appellate court

9) The Plaintiff’s employees, etc. are punished on the ground that they constitute “a person who tenders at a manipulated price in collusion with other bidders” or “a person who interferes with other constructors’ tendering activities by deceptive means, force, etc.” (Article 95 subparag. 1 and 3 of the Framework Act on the Construction Industry). Article 98(2) of the Framework Act on the Construction Industry is a provision