Han Bank Co., Ltd. (Law Firm Pacific, Attorneys Yoon Sung-chul et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Gyeongsung, Attorneys Park Young-ju et al., Counsel for the defendant-appellant)

February 26, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s corrective order and penalty surcharge payment order in attached Form 1, which was issued against the Plaintiff by Decision No. 2008-153 of May 27, 2008, shall be revoked.

1. Details of the disposition;

A. Status and general status of the plaintiff, etc.

(1) Plaintiff 1’s note 1, National Bank of Korea, New Bank of Korea Co., Ltd., 2), Korea Exchange Bank of Korea, and Industrial Bank of Korea (hereinafter “Korea Exchange Bank”) are omitted, Korea Exchange Bank’s “Foreign Exchange Bank”, and the Industrial Bank of Korea’s “Plaintiff, etc.” collectively referred to as “Plaintiff, etc.”) is a financial institution regularly and systematically engaged in banking business under Article 2 subparag. 2 of the Banking Act (amended by Act No. 7428 of Mar. 31, 2005), and is a business entity under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”).

(2) The general status of the Plaintiff et al. is as follows:

The attached Table 1> The general status of the plaintiff, etc.

As of December 31, 2006, units: Won

On November 1, 2001, 195, 206, 481, 15, 15, 15, 15, 15, 15, 15, 154, 957, 197, 60412,062, 887 1,341, 207, 67, 367, 368, 12, 933, 437, 792, 3137, 319, 401, 484, 197, 1967, 147, 1967, 147, 1967, 1968, 2548, 205, 305, 194, 305, 194, 305, 197, 305, 1947, 1967, 46868

(b) Market structure and actual conditions;

(1) a system for purchasing export bills of exchange

(A) The concept of an export bill of exchange

An export bill of exchange means a bill of exchange issued by a bank which has guaranteed the import or export payment of the amount of the goods, together with shipping documents, for the purpose of early financing the amount of the goods after shipping the goods in accordance with a sales contract with the import or export transaction and before receiving the payment from the import or export transaction.

Unlike a promissory note promising the issuer to pay a certain amount on a certain date, there is a characteristic of entrusting the issuer of an export bill to a third party, who is a specific person, to pay a certain amount on a certain date. Accordingly, the parties to the export bill are composed of the issuer(s)(s), the payee(s)(s) and the drawee(s)(s)(s).

(b) the concept of the purchase of an exported bill of exchange;

If an export bill is issued along with shipping documents and is submitted to its bank, the bank may negotiate the export bill. Purchase of the export bill is an act of collecting the price of the goods from the drawee specified in the export bill, after receiving the export bill and paying in advance the price of the goods to the exporting bank, and then collecting the price of the goods from the drawee specified in the export bill. The negotiating bank determines whether to purchase the shipping documents and the export bill in accordance with its credit business through a thorough examination of the shipping documents and the export bill and receives certain fees and interest in return for the purchase.

(c)a summary of the method of settlement of trade proceeds;

The method of settling trade prices between export and import markets shall be as follows:

Table 2> Method of settlement of trade price:

The method of a pre-transfer (COD, CAD) credit (L/C) method; the payer also (D/P) method, an underwriter (D/A) method, and an open cart (O/A); the method of an open cart (O/A); the method of post-transfer of the shipment notice method of the shipment notice method.

The advance remittance method is the way of remitting the full amount of the price to the export sector before the shipment of the goods, and the ex post facto remittance method is the first way of shipping the goods into the export market and then remitting the full amount of the price to the export sector after receiving the goods or shipping documents.

In the remittance method and open service settlement method, export bills are not issued, but export bills are issued in the credit and collection settlement method.

(d) Type of purchase of export bills;

1) Negotiation by credit method

A credit (L/C) refers to a trade payment guarantee issued by the issuing bank at the request of the issuing bank for export.

In other words, revenue can be postponed for a certain period of time and can be confirmed in advance prior to the payment of the price, prior to the date of payment, prior to the date of payment, if the issuing bank promises the payment on behalf of the import, to prevent the risks of impossibility of recovery, and to early financing of the export price by issuing the export bill and requesting the issuing bank for the negotiation.

(ii)purchase by means of collection;

method of collection means (1) the export has loaded the goods under its own responsibility and without the bank's payment guarantee in accordance with a sales contract for the goods with the import; (2) the collection requesting bank shall request the bank to send the bill of exchange to its creditor bank (collectioning bank); and (3) the collection requesting bank shall receive the payment from the import and deliver the documents; and (4) the payment shall be remitted to the collection requesting bank. Unlike the method of the letter of credit, banks shall not guarantee the payment; and (5) merely assist the bank in settling the amount of goods on export and import.

However, even if an export bill of exchange is issued, it can be paid only when it is collected through the collection request bank and the collection bank. Thus, payment is delayed during the collection period. However, even in this case, the export transaction bank may, upon the export request, pay the export bill to the exporter prior to the payment of the import price by negotiating the export bill before collection. However, since there is no payment guarantee such as the letter of credit, it shall be utilized only when the export credit is good and the import trust is trustable.

3) Purchase by means of an open set (Open Ac.O/A).

Under the contract, the open set (O/A) settlement method is a sales contract which requires the export claim to be established by notifying the fact of shipment between the export and the import, and the export is a shipment of the goods, and the shipping documents are directly forwarded to the import, not via the bank, and the import is an export transfer transaction after the shipment notification method that directly deposits the shipping documents to the designated account by the export company during the period specified in the sales contract. This is entirely dependent on the import credit. Accordingly, it is used only for a transaction between large enterprises with a high credit rating and a transaction between main offices.

In this case, the export price claim, which is established with the notice of shipment on export, can be raised from the bank to the early financing of the export price. Accordingly, the export price does not issue an export bill, but the scope of the purchase business of the foreign exchange bank includes purchase by open set.

(2) a purchase commission for an export bill of exchange

(A) Concept

Export draft negotiation fees are all the expenses incurred by the negotiating bank in the course of negotiating the export draft and fees collected for each negotiating transaction to preserve profits from certain limits. The subject of collection of the purchase fees for the export draft is ① the purchase of the export draft by the method of credit (including the case where the export request is made to the re-purchase bank), ② the purchase of the export draft by the method of collection, ③ the purchase of the export draft by the method of collection, and ③ the purchase of the export bond by the open package method.

(b) Relationship with the Commission for Realization (Korean Exchange)

Realization fees are interest arising from the bank's financing burden in the purchase and payment of export bills of exchange and non-foreign currency bills of exchange (including foreign currency bills) and commission fees collected to preserve certain profits. (1) The purchase interest of export bills of exchange (payment in day, in time limit) 2) purchase interest of foreign currency checks 3) and 4) settlement interest of import bills of exchange.

The purchaser of an export bill refers to the commission that the negotiating bank collects a certain amount from export as interest, because the negotiating bank immediately pays the purchase price to the exporting bank in full and pays the purchase price for a certain period of time from the payer of the export bill to receive the payment. Accordingly, in the event that the negotiating bank extends the purchase of the export bill, it refers to the commission that collects a certain amount of money from export as interest.

(3) the current status of the export draft purchase service market

(A) Banks are classified into general banks and special banks. General banks are banks other than special banks established under special Acts, whose business territory covers the whole country, local banks whose business territory covers City/Do, and domestic branches of foreign banks. The current status of banks as of August 2007 is as follows:

Table 3 Bank Status

In the name of a general bank in the name of the bank in the section of this chapter, the Korean Bank, the new bank, the foreign exchange bank, the Japanese Bank, the Japanese Bank, the plaintiff, the local bank in Korea (six in total), the Daegu Bank, the Busan Bank, the Busan Bank, the Gyeongnam Bank, the Jeju Bank, the Jeju Bank, the Hong Kong Hong Kong Bank, the Chinese Bank, the Does Bank, the Bank, the Bank, the Bank, and the Suhyup Bank (five in total), the Industrial Bank, the Industrial Bank, the Export-Import Bank, the Export-Import Bank, the Nonghyup Bank, the Agricultural Bank, and the Suhyup Bank.

(B) 5) The share of the market for purchase of export bills of exchange on the basis of the number of cases shall be as follows:

â……………§) Share of the market for purchase of export bills of exchange

(unit: Does, %)

(6) Of 2004, 2004, 2005, 208.205, 206.12) 87,358 (63), 255, 274, 279, 279 (27.23), 264, 279, 279 (20.53), 279, 279 (20.55), 279, 279 (20.5) 25, 256, 435 (20.5) 196, 236, 234 (17.29, 17.29, 27.47) 196, 296, 196, 234 (17.29, 16.29), 274)

(4) A system for determining fees for banks;

(A)Autonomousizing the determination of fees;

From February 24, 1967, the Korean foreign exchange fee was determined uniformly for each bank in accordance with the agreement. However, the amendment of the Enforcement Decree of the Fair Trade Act (Presidential Decree No. 11475) on July 21, 1984, which was subject to the Fair Trade Act, was repealed from July 23, 1984, and the Bank of Korea provided for only the maximum rate of fees based on the rules on foreign exchange management business. The abolition of the regulations on foreign exchange management business by the Bank of Korea on July 1, 1988, and each bank was able to set up fees autonomously in accordance with its own regulations on fees.

(B) Characteristics of the determination of fees

Foreign exchange fees are determined at the individual bank level in consideration of the credit worthiness, exchange rate, exchange risk, loan interest, equity in the fee system, fees level of competition banks, economic situation, etc.

(c) Revision to the calculation method of a conversion fee and new establishment of the purchase commission for export bills of exchange;

(1) Change to the calculation method of the conversion fees;

The term "influence" and "in the same place" as the method of calculating the interest application period means the date of credit extension commencement and the date of repayment of debts, and the term "influence" means the method of including only one day out of the date of credit extension commencement or the date of repayment of debts in the interest base date.

On November 23, 2001, the Financial Supervisory Service requested banks including the Plaintiff, etc. to change the method of calculating the period of realization from the previous “induction” to the “induction.” After that, according to the strong implementation policy of the Financial Supervisory Service, the Plaintiff, etc. may not change the method of calculating the period of realization into the “one-time inclusion.”

(2) newly establishing a purchase commission for an exported bill of exchange;

Between July 2002 and July 2003, the plaintiff et al. newly created the purchase commission for the export bill as shown in the attached Table 5.

E.C. 5* Details of establishment of purchase commission for the export draft

- The National Bank of Korea 20,000 won on June 14, 2003, after the date of notification of the opening date of the opening date of the securities bank name included in the main sentence of this Act - July 22, 2002, Korea Exchange Bank 20,000 won on July 23, 2002, 200 on August 23, 2002, 200 on September 2002, 2008, Plaintiff 20,000 won on September 28, 2002; November 4, 2002; and

D. The defendant's disposition

(1) The Defendant: (a) decided May 27, 2008; (b) pursuant to Article 2008-153 of the decision of May 27, 2008; and (c) pursuant to the agreement that “the Plaintiff, etc. shall establish an export draft commission of KRW 20,000 per purchase (hereinafter “instant agreement”) in order to compensate for a decrease in income arising from the change of the method of calculating the period of realization on April 2002 by “the Plaintiff, etc.” (hereinafter “instant agreement”); and (c) newly established a fee as shown in Table 5 E.A. 1 of the attached Table, on the ground that it constitutes “the agreement that the Plaintiff, etc. agreed with another business entity to jointly determine, maintain, or change the price” prohibited under Article 19(1)1 of the Fair Trade Act, the Defendant issued a corrective order and a penalty surcharge payment order against the Plaintiff, etc. listed in attached Table 1 (hereinafter

(2) The Defendant, following the following process, determined the amount of the penalty surcharge imposed upon the Plaintiff at KRW 169 million within the scope not exceeding the amount obtained by multiplying the sales amount determined by the Presidential Decree pursuant to Article 22 of the Fair Trade Act by 10/100.

(A) Determination of whether to impose a penalty surcharge

Since the collaborative act of the plaintiff et al. of this case is deemed to have a large competition-restricting effect and ripple effect on the market, it shall impose penalty surcharges on the plaintiff et al. pursuant to Articles 22 and 55-3 of the Fair Trade Act, Article 61 of the Enforcement Decree of the Fair Trade Act, and public notice of detailed criteria for imposing penalty surcharges (No. 2007-15, Dec. 31, 2007; hereinafter "public notice of imposition of penalty surcharges") Ⅲ. 2.0 (1).

(B) The relevant sales;

1) Period of violation

On April 10, 202, which the plaintiff et al. agreed to establish a new purchase commission for the export bill of exchange, there is no circumstance of withdrawing from the agreement of this case or destroying the agreement by March 26, 2008, which is the date of the deliberation of the plenary session by the defendant of this case. Thus, on March 26, 2008, the date of the deliberation of this case shall be deemed March 26, 2008, which is the date of the deliberation of this case, according to the provisions of subparagraph 1 (b) of the public notice of imposition of penalty surcharge II.

(ii) the scope of the product concerned;

The commission for negotiating export bills of exchange of KRW 20,000 per case subject to the agreement of this case is an economic benefit that the plaintiff et al. takes from export in return for the provision of negotiating services. Thus, the related goods of this case are ① Purchase of the draft of exchange (including the case where the export request is made to a re-purchase bank) by the method of credit, ② Purchase of the draft of exchange by the method of collection, ③ Purchase of the export bond by the method of open transport, etc.

(iii)the computation of relevant sales;

The relevant sales shall be calculated based on the period of actual collection of the purchase fees for export bills by bank, as the purchase fees received by the Plaintiff, etc. in return for performing the business of purchasing export bills of exchange. The relevant sales by the Plaintiff, etc. are KRW 3.46 billion.

(C) Calculation of basic penalty surcharges

The instant unfair collaborative act is a case where the Plaintiff, etc., who has a market share of approximately 60% in the export draft purchase service market, agreed to jointly determine, maintain, or change the price, thereby taking economic benefits from the export in return for the provision of the purchase service. The instant unfair collaborative act is a case where the effect of restricting competition is obvious and is not effective to increase efficiency, and thus, the instant violation constitutes a very serious violation.

Therefore, the imposition standard rate of 7% or 10% shall be applied to the Plaintiff, etc. based on the provisions of Section IV.1.c. (1) (a), but the basic penalty surcharge shall be determined by applying the imposition rate of 7% in consideration of the fact that most of the periods of the instant violation were conducted before November 4, 2007, the amended Fair Trade Act and the Enforcement Decree of the Fair Trade Act, which were the enforcement date of the Fair Trade Act. The basic penalty surcharge against the Plaintiff is KRW 242 million.

(d)Calculation of mandatory and discretionary adjustment charges;

The mandatory and discretionary adjustment penalty surcharge shall be the same amount as the basic penalty surcharge because there is no reason for mandatory and discretionary adjustment against the plaintiff, etc.

(e) Determination of a penalty surcharge;

In light of the fact that the agreement in this case was partly caused by the implementation of the change of the method of calculating the interest on realization fees by the financial authorities, the actual purchase fees were applied to the coal force, and it is difficult to see that the content of the agreement was direct and exclusive in the market, the imposition and public notice of penalty surcharge IV. 4. A. 1, the imposition of penalty surcharge shall be reduced by 30% based on the provisions of subparagraph (a) of this Article. Accordingly, the imposition penalty against the Plaintiff is KRW 169

[Ground of recognition] Facts without dispute, Gap evidence No. 1, and the purport of the whole pleadings

2. The plaintiff's assertion

(a) Absence of collaborative act;

The plaintiff was prepared to realize foreign exchange fees for about one year from the time of administrative guidance in order to compensate for losses incurred in the execution of the "one-time" in calculating the conversion fees according to the administrative guidance of the Financial Supervisory Service, and was only newly established on November 4, 2002, and there was no agreement with other banks to establish the purchase fees for export bills of exchange.

B. Non-existence of competition limitation

When the Plaintiff operates the export draft purchase commission, in light of the fact that the Plaintiff collected KRW 1 billion from May 2007 to September 2007, the average of KRW 230 million reduced or exempted, even if it was possible to collect KRW 1 billion from May 2007 through September 2007, it does not result in restricting competition even if there was an agreement to newly establish the purchase commission.

(c) sense of a legitimate act or illegality;

The establishment of a purchase commission for export bills was promoted in the process of or jointly responding to the enforcement of the Financial Supervisory Service’s “On the one hand.” Therefore, this is a legitimate act under the laws and regulations, which is not subject to Article 19 of the Fair Trade Act pursuant to Article 58 of the Fair Trade Act, or which constitutes the joint exercise of bank rights, such as the Plaintiff, etc. with respect to the administrative guidance of the Financial Supervisory Service, and its illegality is dismissed in accordance with the Trade Act.

D. Illegality of the calculation process of penalty surcharges

(1) Violation of the calculation of basic penalty surcharge

Considering the fact that the establishment of the purchase commission for export bills is an act in accordance with the administrative guidance of the Financial Supervisory Service, and that the collaborative act in this case is actually conducted competitively, it does not constitute a very serious violation.

(2) Violation of the application of the imposition standard rate

Since the Fair Trade Act was amended by Act No. 5498 on January 8, 1998, the upper limit of penalty surcharges for unfair collaborative acts was set at 5% of the relevant sales (Article 22). The Defendant amended the public notice of imposition of penalty surcharges on April 1, 2004, and stipulated the upper limit of the base rate for imposition at 3.5% through 5% of the relevant sales. The Fair Trade Act was enacted on December 31, 2004 (from April 1, 2005; hereinafter the above Act was amended by Act No. 7315, Apr. 1, 2005). The Enforcement Decree of the Fair Trade Act was amended by Presidential Decree No. 18768 on March 31, 2005, which was amended by Act No. 8768 on March 31, 205, and was amended by Act No. 8 of the former Addenda to the Act, which was in force before the amendment to the Act, was amended by Act No. 106.

As above, applying the imposition standard rate of penalty surcharge aggravated to the previous period of violation solely on the ground that the amended Act was enforced is in violation of the principle of retroactive prohibition. Therefore, it is unlawful for the Defendant to apply the imposition rate of penalty surcharge of 7% in total, including the entire period of the instant

(3) Illegal calculation of discretionary adjustment penalty surcharge

The purpose of this case is to only compensate for the loss caused by the change of the method of calculating the period of realization in accordance with the policies of the Financial Supervisory Service. Therefore, the collaborative act of this case is "an act in which the government policies are carried out in person," as provided in Section IV. 3(c)(4) of the Public Notice of Imposition of the Penalty Surcharge, which constitutes "an act in which the government policies are carried out in person," and constitutes grounds for voluntary reduction of the adjustment penalty surcharge.

In addition, the penalty surcharge under the Monopoly Regulation and Fair Trade Act has the nature of restitution of unjust enrichment. 20,000 won for purchase of export bills determined by the plaintiff is merely 1/3 to 1/4 of its cost, and there is no unjust enrichment that the plaintiff acquired from the establishment of purchase commission

However, since the defendant did not consider the above reasons for mitigation in calculating the penalty surcharge at all, there is an error of deviation and abuse of discretion.

3. Relevant statutes;

Attached Table 2 shall be as listed in the attached Table 2.

4. Whether the disposition is lawful.

(a) Existence of the collaborative act;

(1) Facts of recognition

On September 201, 2001, the Korea Federation of Banks, the Financial Supervisory Service, etc. requested that the calculation method of the period of conversion fees and purchase interest of local letter of credit be changed from "induction" to "induction", and made proposals for improvement related to foreign exchange commission of banks.

On September 24, 2001, the ○ National Federation of Banks held a meeting of a person in charge of foreign exchange affairs of major banks in order to seek countermeasures against this. On September 24, 2001, the Plaintiff, Korean banks, foreign exchange banks, Gu Choung Bank, and the working-level officers of the Industrial Bank of Korea were present at the above meeting. The Plaintiff’s working-level officers of foreign exchange affairs such as the Plaintiff, etc. formed a consensus that it is inevitable to establish a new purchase commission when implementing a “one-time” meeting through the above meetings and non-public meetings, and the said opinion was expressed in consultation with

○○, however, on November 23, 2001, the Financial Supervisory Service issued a written request for cooperation to the Korea International Trade Association to the effect that it is unreasonable to calculate the conversion fee into “inducing” when calculating the various kinds of loans and interest of the current bank. Therefore, it is desirable to accept the proposal for improvement of the Korea International Trade Association in order to reduce the burden of trade enterprises and improve the financial transaction practices.”

With respect to ○○○, the person in charge of foreign exchange affairs of the Plaintiff et al. discussed whether the “one-time” was implemented through an unofficial meeting and the establishment of fees accordingly. After checking the strong implementation of the Financial Supervisory Service, the Plaintiff et al. reported to the Financial Supervisory Service that the method of calculating the conversion fee would be changed to the “one-time conversion” during the first half of 2002.

On April 10, 2002, the person in charge of foreign exchange affairs such as the Plaintiff, etc. has agreed to establish a new purchase fee of KRW 20,000 per case in order to respond to the decrease in profit due to the enforcement of the “On the other hand,” and each bank exchanged information on the new time of the establishment of the purchase fee of another bank, and each bank newly established a purchase fee of the export bill, such as attached Table 5 ‘A', from July 2002 to July 2003.

【Ground for recognition】 Evidence Nos. 1, 1 through 30, and the purport of the whole pleadings

(2) Determination

In light of the following circumstances acknowledged by the above evidence, namely, 00 won per 20 member of the foreign exchange business entity, the 20th anniversary of the above fact-finding ; the 20th anniversary of the above fact-finding ; the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 20th anniversary of the 3th anniversary of the 4th anniversary of the 4th anniversary of the 20th anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 4th anniversary of the 2nd anniversary of the 2nd anniversary of the 2nd anniversary of the 4th anniversary of the 2nd anniversary of the 2nd anniversary of the 4th anniversary of the 2nd anniversary of the 3nd anniversary of the 2nd anniversary of the 4th anniversary of the 2nd anniversary of the 3nd anniversary of the 2nd anniversary of the 4th anniversary of the 2nd anniversary of the 2nd anniversary of the 3nd anniversary of the 3th anniversary of the 2nd.

The plaintiff asserts that the time of enforcement of the purchase commission of the plaintiff et al. for export bills, as shown in the attached Table 5> was three to one year and three months from the time when the defendant asserts that the purchase commission would reflect the fact that the purchase commission was established independently according to the circumstances of each bank. However, as seen above, it is sufficiently recognized that there was an agreement on the purchase commission and amount of export bills of exchange by the plaintiff et al., the purchase commission of the plaintiff et al. was enforced over a short period after the above agreement was reached from July 22, 2002 to November 4, 2002, the time of enforcement of the purchase commission for the plaintiff et al. except the national bank and the corporate bank was enforced from July 22, 2002 to November 22, 2002, the national bank delayed its enforcement due to the integration of the computer systems of the housing bank (Evidence No. 16) and the corporate bank was implemented in order to reduce the burden of the small and medium enterprises (Evidence No. 230). 30).

B. Whether competition restriction is limited

In light of the fact that the market share of the Plaintiff et al. in the export draft purchase commission market is more than 63%, and there are some differences at the time of establishment of purchase commission for each bank, it is sufficient to view it as the process of performance in order of agreement, and that the purchase commission is set at the same amount, etc., even if the establishment of purchase commission was made in order to compensate for losses arising from changes in the method of calculating the purchase commission, it shall be deemed that the competition factor of the customer, such as escape, etc. that occurs when the purchase commission was set and executed independently due to the collaborative act in this case is removed, and it shall affect the price determination in the market

(c) Feasibility of applying the doctrine of legitimate acts or fishing exemption;

(1) Whether the act was legitimate

The term "reasonable act performed in accordance with the law or any order issued under such law" under Article 58 of the Fair Trade Act means an act necessary or minimum within the scope of an order issued under such law, where the exclusive status of a business operator is guaranteed through a business or authorization system deemed reasonable to restrict competition due to the special nature of the business in question, while a business which requires high level of public regulation from the viewpoint of public nature, etc. (see Supreme Court Decision 2004Du8323, Nov. 23, 2006, etc.).

However, in the case of this case, the Financial Supervisory Service requested the improvement of the "one-time" in calculating the conversion fee, etc., and there is no evidence to acknowledge that the establishment of the purchase fee of export bills or the commission fee rate has been given specific directions or recommendations. Thus, the plaintiff's assertion on this issue is not accepted.

(2) Whether the old language exemption doctrine is applied

The legal principles of Nowon-gu exemption are theories under the U.S. judicial precedents that exclude the application of the Monopoly Regulation and Fair Trade Act even if the intent is anti-competitive and anti-competitive policies as a result of restricting competition, and even if the policy is implemented, the collaborative act in this case is conducted after the policy or implementation policy of the Financial Supervisory Service became final and conclusive, as long as the collaborative act in this case was conducted after the policy or implementation policy of the Financial Supervisory Service. Thus, the plaintiff's assertion on this issue is not accepted.

(d) Whether the calculation process of penalty surcharge is illegal

(1) Whether it constitutes a very serious violation

In light of the above circumstances, the instant collaborative act continues relatively for a relatively long period, and the market share of the Plaintiff’s purchase commission for export bills of exchange exceeds 63% and the effect of restricting competition due to the instant collaborative act, etc., it shall be deemed that the instant collaborative act constitutes a very serious violation.

(2) Whether the principle of retroactive prohibition is violated

In a case where a relevant statute is amended, an administrative disposition is in principle based on the amended statute and its standard established at the time of the disposition unless otherwise specified in the transitional provision. Even in a case where the amended statute provides for a more unfavorable legal effect than the previous one while applying the existing facts or legal relations, if such facts or legal relations are not completed or terminated before the amended statute enters into force, it shall not be deemed a retroactive legislation prohibited under the Constitution. In relation to the application of such amended statute, if the people’s trust in the existence of the preceding statute is recognized as more worthy of protection than the public interest demand for the application of the amended statute, it may be limited to the protection of the people’s trust (see Supreme Court Decision 2001Du274, Oct. 12, 201, etc.).

In this case, Article 8 of the Addenda to the amended Act was amended to the effect that Article 8 of the Addenda to the amended Act was applied to the application of the upper limit of penalty surcharge prior to the amendment (5%) even though the relevant provisions of the Fair Trade Act and the Enforcement Decree thereof were aggravated through the amendment process (5% ?10%). As such, the amendment to the amended Act was made to the effect that the application of penalty surcharge to the act terminated after the three months have passed since the promulgation of the amended Act of this case was made according to the amended Act, it cannot be deemed that the amended Act was a retroactive legislation prohibited under the Constitution, and the collaborative act of this case continues to be until March 3, 2008 after three months have passed since the date the amended Act was promulgated ( August 3, 2007). Therefore, the application of the current Fair Trade Act to the collaborative act of this case does not violate the principle of retroactive prohibition.

In addition, even if the Plaintiff trusted the existence of the previous relevant laws and regulations, which provided for minor penalty surcharges compared to the current Enforcement Decree of the Fair Trade Act and the public notice of imposition of penalty surcharges, in light of the legislative intent of Article 19 of the Fair Trade Act regulating unfair collaborative acts and the amendment background of the Fair Trade Act that strengthened the standards for imposition of penalty surcharges, such trust of the Plaintiff does not seem to be more protected by comparing and balancing with the public interest demand on the application of the amended current laws and regulations and the public notice of imposition.

Therefore, it cannot be deemed unlawful to uniformly apply the imposition standard rate of 7% for the entire period of the collaborative act in this case. Therefore, the Plaintiff’s assertion on this issue is rejected.

(3) Whether there is a ground for voluntary mitigation

The Financial Supervisory Service requested the Plaintiff, etc. to implement a policy to change the method of calculating the period of conversion fees from the "indunes" to the "indunes". Accordingly, it is true that the Plaintiff's revenue decreases. However, even if it was necessary to establish a new purchase fee for export bills for the purpose of preserving reduced revenues, it is a matter of independent decision in consideration of the circumstances, such as whether to establish a new and specific fee rate, and the specific fee rate, inasmuch as the government's policy or binding administrative guidance is the same, it cannot be deemed that the collaborative act in this case was committed, and even if the purchase fee for export bills as alleged by the Plaintiff falls short of its cost, it cannot be said that the Defendant violated the law of abuse of discretionary power, on the sole basis of the fact that the Defendant did not consider such circumstances in calculating the fee, and thus, the Plaintiff's assertion on this issue is rejected.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Lee In-bok (Presiding Judge) Lee In-bok Kim

1) Since the former Seoul Bank merged the former Han Bank on December 1, 2002, and changed its trade name to the Han Bank, the instant collaborative act committed by the former Han Bank prior to the merger shall be deemed to have been performed by one Bank pursuant to Article 55-3(2) of the Fair Trade Act (hereinafter “one Bank”).

2) Since the former Choung Bank was merged with the new bank on April 1, 2006 and changed its trade name to the new bank on the part of the former new bank, the joint act of this case committed by the former new bank on the part of the merger shall be deemed to have been conducted by the new bank on the part of the newly established company under Article 55-3 (2) of the Fair Trade Act (hereinafter referred to as the "former new bank" and the "former Choung Bank", and if not, it shall be deemed to have been conducted by the new bank on the part of the newly established company on the part of the merger).

3) The foreign currency check refers to a check or a note in foreign currency, the place of which is the place of payment of the check. The foreign currency check is a check or a note in foreign currency, the payment of which is to be made before being paid by the payment bank, and then the payment of which is to be collected in the future by the payment bank is the “purchase before collecting the foreign currency check” (BP). In this case, the purchase bank collects the interest of the purchase of the foreign currency check from the holder of the foreign currency check as interest for the advance payment of the check, which is the form of a conversion fee.

Note 4) When a L/C is issued, if the revenue does not set aside in advance, the issuing bank or the acceptance bank will first pay the revenue amount, and the issuing bank or the acceptance bank will collect the realized interest of the settlement of the bill of exchange, along with the collection of the bill of exchange.

Note 5) not only negotiates of export bills of exchange by credit and collection method, but also includes the number of purchases of export bonds by open service method.

6) The term “Financial Group Agreement” means setting specific guidelines for regulatory matters between the Ministry of Finance and the Bank of Korea in the form of an agreement between banks, and was subject to certain sanctions in the event of violations.