(영문) 서울고등법원 2008.9.3. 선고 2006누30036 판결

A. The Plaintiff and the Plaintiff’s Intervenor (the Intervenor was changed from the Marart Korea Co., Ltd. to the present trade name on September 28, 2006, after the combination of the two cases; hereinafter referred to as “the supplementary intervenor, the combination of the Plaintiff and the supplementary intervenors”) are companies mainly engaged in large general retail business, and they constitute a business entity under Article 2 subparag. 1 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 8382, Apr. 13, 2007; hereinafter referred to as “Fair Trade Act”), and the general status of total assets and sales, etc. are as shown below.

(1) A table 1 General Status of a merged company (as of 2005, 31 December 12, 2005, per unit: Won, per cent)

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B. On May 2, 2006, the Plaintiff entered into a contract with Wal-art St., Inc., the chain of the U.S. largest retail store to acquire the entire shares issued by the subsidized intervenor (hereinafter “the combination of enterprises in this case”), and on May 23, 2006, the Plaintiff reported prior combination of enterprises to the Defendant pursuant to the proviso of Article 12(6) of the Fair Trade Act.

(3) On this basis, the Defendant: (1) has at least 3,00 square meters store; (2) the distribution market of various old-end daily consumption goods, such as food, clothing, and daily necessities, which is less than ordinary retail prices; (2) the relevant regional market is located within a certain distance (5 km or 10 km) centering on the branch offices of the Intervenor acquiring the company; and (3) the aggregate of the areas included within 6 km of the area within 5 km from 10 points at the 5 km point in the Seoul Southern Southern Metropolitan Government (5 km; (4) the area included within the 5 km boundary of the area including the 5 km boundary of the 5 km boundary; (5) the aggregate of the areas included within the 5 km boundary of the area including the 5 km boundary in the 6 km boundary of the 5 km boundary.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 22, the purport of the whole pleadings

2. Summary of the Plaintiff and the Intervenor’s assertion

The plaintiff and the supplementary intervenor asserted that the disposition of this case is unlawful for the following reasons.

A. According to the latter part of Article 16(1), Article 12(6) proviso, and Article 12(7) of the Fair Trade Act with respect to the disposal period, a corrective order shall be issued within 120 days from the date on which a report on the combination of enterprises was filed. The Defendant was unlawful since the disposition of this case was made only on November 14, 2006 after the lapse of 120 days from May 23, 2006 when the Plaintiff reported the combination of enterprises of this case.

B. In relation to the definition of the relevant market, since the discount points subject to the combination of enterprises in this case are competing in many areas such as department stores, Smarkets, etc., the comprehensive circulation channels, including them, should be the product market. Since competition among the discount points is not an individual branch source but a nationwide level, it is much more concrete to widely define the product market by starting from the concept of the regional business district, and thus, the regional market is much more concrete. However, without reasonable grounds, the defendant defined the regional market as the "large discount market" and the "area included in the overlapping point" as the "area included in the overlapping point" based on all discount points included in the specific distance (5 km or 10 m) of the branch of the supplementary intervenor, the acquiring company, focusing on the branch of the supplementary intervenor.

C. Even if the Defendant’s relevant market definition is reasonable in relation to the existence of restrictions on competition, it is not recognized that the instant combination of enterprises restricts competition in light of the concentrating situation of the market, abuse of market power after the combination of enterprises, possibility of abuse of cartel conduct, and possibility of new entry.

D. In relation to the promotion of efficiency, the combination of enterprises in this case constitutes a case where the effect of efficiency increase is more than the negative effect caused by competition restriction, and thus, Article 7(2) of the Fair Trade Act does not apply.

E. Regarding an order of transfer

(1) The Defendant can directly issue an order for transfer of the assets owned by the Intervenor, who is the acquiring company, to directly and indirectly dispose of the Intervenor, and it does not have the right to issue an order for transfer of the assets owned by the Intervenor with respect to the Plaintiff, who is the acquiring company, and the instant disposition is only the Plaintiff as the other party. As such, the Intervenor at risk of disposal of the assets was not provided with all opportunities to state his opinion guaranteed under Article 52(1) of the Fair Trade Act and Article 22(3) of the Administrative Procedures Act, and thus, it is unlawful in its substantive and procedural manner

(2) The Defendant limited a business entity, other than department stores, who does not belong to the top-third company of the year 2005 sales in a large general retail business, to the subject of the assignment of a branch. In light of the fact that the 4-5 discount store in a narrow national land has not been able to find the potential transferee to play a competitive role in the relevant area in reality in the current market situation in Korea where the 4-5 discount store is in an over-point position, and social expenses, such as the issue of succession to employment following the transfer of a branch office, etc., even if the restriction on competition in the combination of enterprises of this case is recognized, the Defendant issued a structural corrective order, such as transfer order, even though the Defendant could make the Plaintiff not perform a certain act, or remove the effect of the restriction on competition sufficiently by presenting guidelines therefor, and the Defendant has been in violation of the principle of proportionality or the principle of equality.

3. Related statutes;

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

4. Whether the disposition is lawful.

(a) Whether the disposal period has expired;

(1) The latter part of Article 16(1) of the Fair Trade Act provides that corrective measures against a business combination reported in advance under the proviso of Article 12(6) of the same Act shall be taken within the period under Article 12(7) of the same Act (30 days after the prior report, and 120 days when the period is extended). Article 18(4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20360, Nov. 2, 2007; hereinafter the same) provides that "where the submitted report or accompanying documents are incomplete, the defendant may order the correction of the relevant documents for a specified period. In such cases, the period required for the correction (including the date on which an order for correction is issued and the date on which the corrected documents arrive at the defendant) shall not be included in the period under Article 12(7) of the same Act."

(2) However, comprehensively taking account of the overall purport of the pleadings as to Gap evidence Nos. 22 and Eul evidence Nos. 9-1 through 10, the defendant sent a written request to the plaintiff to the effect that "the plaintiff submitted data such as the annual score and sales status of the discount store, the sales status of each branch office, the business district analysis data of each branch office, and the new store departure plan, etc., in accordance with Article 50 of the Fair Trade Act, for five times from June 2, 2006 to September 4, 2006, after receiving a prior report from the plaintiff on May 23, 2005 about the combination of enterprises of this case." Accordingly, if the plaintiff excluded the period required for the above data, the disposition of this case can be acknowledged within 10 days from the date of the prior report by the plaintiff."

(3) On this issue, the plaintiff asserts that the defendant's written request for submission of data is not directly related to the report of combination of enterprises under Article 50 of the Fair Trade Act, rather than Article 18 (4) of the Enforcement Decree of the Fair Trade Act, and the defendant's "Guidelines for Reporting Combination of Enterprises (Notice No. 2005-5 of the Fair Trade Commission)" which provides that the defendant's report of combination of enterprises shall be accompanied by the report of combination of enterprises, such as total assets, sales, etc., the current status of the reported company and partner company's shareholders, the current status of its affiliates, and evidentiary materials related to the acquisition of stocks, so the defendant's request for submission of data

(4) However, the purport of Article 18(4) of the Enforcement Decree of the Fair Trade Act ordering correction is not only to correct the formal defect in the report and accompanying documents submitted by the reporter, but also to submit data necessary for the examination in case where the business combination in question is insufficient to determine whether the business combination in question substantially restricts competition only with the report and accompanying documents submitted by the reporter in relation to the examination of the business combination by the defendant. In light of the circumstances leading up to the defendant's request for submission of the above data and its contents, all of the data requested by the defendant to the plaintiff are related to the determination of competition restriction of the business combination of this case, although the defendant sent a written request for submission to the plaintiff and entered the supporting document in Article 50 of the Fair Trade Act, the substance thereof is deemed as an order of correction stipulated in Article 18(4) of the Enforcement Decree of the Fair Trade Act. Thus, the period required for submission of the above data should not be included in determining whether the instant

(5) If so, the disposition of this case was conducted within 120 days from the date of the plaintiff's prior report under Article 12 (7) of the Fair Trade Act. Thus, the plaintiff's assertion against this cannot be accepted.

B. Whether the determination of the relevant market was erroneous

(1) Grounds for determining the defendant's relevant market

Opening Market for Goods

① Generally, where there exists similarity of functions and utility of goods, the same market can be defined as the same market. However, in the case of a distribution business, the market is defined on the basis of whether there is an economic and significant competition relationship between the distribution business and the distribution business, taking into account the distribution environment characteristics of the distribution business, consumer consumption behavior or added value created by the distribution business entity is not the product itself but the characteristics of the distribution environment. As such, in the determination of the related market, consumers’ awareness or purchase behavior for distribution services, rather than the similarity of physical functions and utility of the goods, should be taken into account. Therefore, in the distribution business, it is general to define the distribution business as another market according to the characteristics of the distribution channel where the goods are sold even if the goods are physically identical. On the other hand, the Court determined that the FTC’s preliminary injunction on the issue that the FTC intended to take over the same kind of goods in the distribution business should be considerably affected by the prior order of prohibition on the distribution business (hereinafter referred to as the “Stas case”), and that it should be considerably affected by the relevant business entity’s or other specialized regional market.

② Under the Standard Industrial Classification publicly announced by the Commissioner of the Statistics Korea pursuant to Article 17(1) of the Statistics Act, retail businesses are classified into general retail businesses and specialized retail businesses. A general retail business is subdivided into a large-scale general retail business, a general food retail business, a general food retail business, and other general retail businesses according to the size of the store and the composition of the product. A large-scale general retail business is subdivided into a large-scale general retail business, and a large-scale general retail business is subdivided into a "large-scale general retail business" and a "large-scale general retail business". In addition, according to the Distribution Industry Development Act and Article 3(1) of the Enforcement Decree of the same Act, the large-scale retail business is classified into a "large-scale retail business, a specialized store, a department store, and a shopping center, a discount is classified into a "small-scale retail business, a retail business with a price lower than a 3,000 square meters or more of the retail price of ordinary products."

(3) The discount points are clearly distinguishable from other distribution business types and sales products to a certain degree, but they are clearly distinguished from various aspects, such as product price, product color, service, store size, consumer access level, and convenience in use.

④ Even in the case of the United States and the European Union, the number of distribution businesses similar to the discount stores in Korea, such as sub-markets, Smarkets, and discamba, are considered to be the same market with significant competition, and is defined as a market separate from the specialty stores, department stores, small-sized stores, conventional markets, and wholesale businesses.

⑤ In full view of the above legal and institutional aspects, characteristics of discount points, consumer recognition, and foreign cases, etc., the market for the combination of enterprises of this case shall be set up as a "large-scale market" which sells daily consumption products of various colors, such as food, clothing, and daily necessities, at least 3,00 meters, which are lower than the normal retail price, with the market for the combination of enterprises of this case.

(b) Regional markets

(1) As of the end of 2005, 18 business entities (for recent years, thisland and Dau Pu separately calculated) establish and operate 298 branches nationwide, and considering the purchase potential in each region, the distribution status is not concentrated in a specific region, but is also competing across the country.

(2) According to the stages of manufacture and distribution of goods, the competition at the stage of manufacture and distribution is generally conducted within a nationwide or global scope, but it is difficult to bring about effective competition at the world market or nationwide level in the distribution stage such as wholesale and retail. In other words, in the case of large-scale distribution enterprises, prices setting and adjustment reflecting regional characteristics by branch, revision of sales strategies, advertisements for local residents are conducted, and consumers are engaged in consumption activities centered on a certain region because expenses or effort are required for information collection, mobility, etc. As such, in the case of the combination of enterprises, the relevant regional market should be defined as a market within a regional range by comprehensively taking into account the regional competition phenomenon, consumers' discount points, utilization status, awareness attitude of related business operators, etc. as examined below in detail.

③ Most discount points set the basic price at the head office, but adjusts the price by item by reflecting the competition situation at each branch. This means that the actual price competition at each branch is conducted by the Plaintiff. Examining the price at each local branch of the small and medium-sized and the small and medium-sized owner who has sold a number of representative goods and the branch office that maintains a single nationwide price at the head office, the small and medium-sized owner is less than 23% of the total branch office in the case of the small and medium-sized owner and the 57% of the total branch office in the case of the small and medium-sized owner, and the branch office that sells other prices at each region was 7% in the case of the small and medium-sized owner and 43% in the case of the small and medium-sized owner. The fact that the price competition at the discount points is conducted at a regional level can be confirmed

In addition, the minimum price reporting compensation system is a system that compensates the reporting customer if the price sold at another discount store located in the same business district (within five kilometers in the opposite place) regardless of the purchase of the product is lower than it. The existence of such minimum price reporting compensation system is expressed by itself that the competition of the market at the discount store is being conducted in a region rather than a nationwide unit.

(4) According to the distribution status of members at a discount point, the distance on which members of the 70% to 80% are distributed is about five kilometers in Seoul or metropolitan areas (referring to Seoul Special Metropolitan City, Metropolitan Cities, and adjacent cities; hereinafter the same shall apply) and about ten kilometers in cases of provincial areas.

(5) Where the business entities at a discount establish a competitive strategy, the same type of discount points are mainly set at the same competition subject to the competition. Although different local conditions depending on regional conditions, such as the degree of regional competition, the number of population and the index of purchasing power, ordinarily, the discount point is recognized as one business district, recognizing 3-5 km in radius as another discount point within this scope.

6) The U.S. commonly adopts a method of access by case-by-case case in the business combination case of Smarkets. In most cases, the regional market is defined at the regional level centered on administrative district or corety. There are cases where the EU or the United Kingdom is demarcated on the basis of the distance intended for consumers to use the regional market, and in particular, the UK has demarcated the market on the basis of the size and movement distance of the retail store. In Japan, there are cases of determining the market on the basis of the status of distribution and transaction amount of the regional retail store in the definition of the wholesale market. In other words, there are cases of determining the market on the basis of the distribution status of the local retail store and the transaction amount of the company (market) established by the merger of retail merchants, taking into account the distribution of more than 70% within the 20km area of the company (market) established by the merger of retail merchants and the transaction amount is more than 70%.

7) Considering the above discount points distribution status, competition status, customer distribution status, relevant business operator’s awareness, and foreign cases, it is reasonable to temporarily define the local market for the combination of enterprises of this case as “an area included in the overlapping center by temporarily exchanging the same distance source based on all discount points included in the source located within the radius of 5 km in cases of metropolitan areas, and 10 km in cases of non- metropolitan areas, based on all discount points included in the source located within the radius of 10 km in cases of metropolitan areas.”

(2) The plaintiff and the supplementary intervenor's assertion

미국의 수평적 기업결합심사지침에서 사용하고 있는 관련시장 획정 방법으로서, 전세계적으로 채택되고 있는 SSNIP 방법론(SSNIP Test)에 의하면, 관련시장은 "유일한 현재 및 장래의 생산자인 가상적 이윤극대화 기업이 '적지만 의미 있고 일시적이지 않은 가격인상(Small but Significant and Non-transitory increase In Price)'을 할 제품이나 제품군 및 지역"으로 획정하여야 있고, 피고의 기업결합심사기준(공정거래위원회 고시 제1999-2호, 이하 '심사기준'이라 한다) V.항도 위와 같은 SSNIP 방법론을 수용하여 관련시장을 획정하도록 규정하고 있다.

However, if the combined companies of the Plaintiff and the Intervenor are in a significant meaning and temporary price increase (SNIP), the Defendant does not offer any evidence that the customers will make a purchase conversion to the retail companies of small and medium discount stores, specialized solar stores, Schlages, department stores, etc., and only other large discounts such as home flus, carpers, and carp, etc., so only large discount points cannot be determined as a separate commodity market.

In addition, in order to define regional markets by applying SSSNIP methodology to the combination of enterprises in this case, it is necessary to first determine whether a discount store operator operating a large number of stores located in different regions has set different prices at a certain area below the whole country, i.e., regional price discrimination (in the case of US Stss, it has been proved that in the case of a specialized store store for large office supplies such as Sauses or Office, it has been setting separate prices for each region, and that at all different retail prices are set in consideration of the state of competition for each region). According to the empirical analysis of the Plaintiff’s “The main source of competition that restricts the Plaintiff’s price settlement, etc., is that national enterprises with similar competitiveness and scale in regional level, whether competition is national or regional level, and that there is no basis to determine the price of new food products by the Plaintiff at a nationwide level, not the individual source of competition between discount stores, but the actual market price difference between new and new 10 meters in national level.

Considering the above various circumstances, in relation to the combination of enterprises of this case, the product market is the retail business that provides an environment such as Smarket that sells foodstuffs and consumer goods, and the regional market is more concrete than that of the Defendant’s defined market by starting from the concept of regional commercial zone rather than uniform distance.

(3) Facts of recognition

(A) Present status of retail distribution markets

Since the mid-190s, the retail distribution market has been converted according to the changes in social conditions, such as the opening of the distribution market and the IMF economic crisis, and changes in consumption trends.In other words, in the traditional markets centered on the existing small retail stores and the simple market structure, which has been divided into department stores, entry into the foreign capital industry, and expansion of the participation in the distribution market by conglomerates in the distribution market, non-store types, such as discount stores, Schlage and convenience stores, home shopping, Internet shopping mall, etc. These new forms of business (e.g., discount stores, Smarkets, convenience stores, home shopping, etc.) have appeared large scale or multistore strategies, and the total scale of the market has been expanded, but the increase has been made more effective since 201.

As of the end of 2005, the total market size of retail distribution market reaches 153 trillion won, and the total market size has increased by 6.7% compared to the previous year. In particular, the department stores, which continued to grow up to 4.2% compared to the previous year, due to the growing growth of non-store business types, convenience stores, and discount stores.

Table 2 Market size by Type of Distribution Business (as of the end of 2005)

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Examining the trend of changes in the share of each distribution business among the total retail distribution markets, the reduction and discount points of conventional markets and the rapid growth of the nonstore business.

First of all, in the case of the small retail store of traditional markets, etc. with 70% of the total retail market, it is the trend that the proportion of the store is rapidly reduced from 2001 to 50% due to the proliferation of the Seo-gu shopping culture and the growth of the corporate type of business.

Note 3) The trend of the proportion of conventional markets, etc. in the total retail and distribution market

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On the other hand, the growth rate of discount points that can be called a corporate type of new business has been increasing, and the discount points are continuously growing up by overtaking department stores that show their physical conditions at the starting point in 2002 as seen below, and the gap between both parties is gradually expanding.

The trend of the weight of each type of business among the total retail and distribution markets (excluding conventional markets) shall be as follows:

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B. The background of the growth of the discount store was first introduced into the plaintiff's creative store in 1993, and it has been rapidly growing by the policies to open the distribution market and to relax the regulations on the store expansion by the government.In addition, opening the distribution market, foreign distributors have entered the global market for a competitive discount store, and domestic conglomerates continue to grow high growth in terms of the number of stores and sales by strengthening their participation in the market.

Demark 4) Growth trend of the discount store (unit: opening, lighting, per cent)

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As of the end of 2005, 18 foreign firms including 4 foreign firms (in recent years, this Ireland and Dau Puc separately account) participate, and the total number of stores is expected to be established additionally by the end of 298 or 36 stores by the end of 2006.

Market share at the discount point in attached Table 5> (The last day of 205)

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*Sales: Gross sales (direct purchase, specific purchase, lease) + Sales rent

** New Zealand: New Zealand (10 points), 201 Pulet (8 points), 201, guardian clubs (1 point)

*****(10) : Costroc, Babre, Ireland, Meart, Bigmat, Vamat, tower, East-mamt, East-gumt, Korea Tymart, and Lymart domestic discount store are the over-point structure in which the upper five companies occupy more than 80% of the total market, and these market concentration structures are deepened.

for the last five years, the upper five concentration trend

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* CR5: 4(Gaar, Home flass, Baras, Baras, Dr.) + 1(2)(2)(2)(2)(3)(2)(2)(3)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2)(2

First, the consumer's consumption behavior changes into a reasonable consumption tendency that leads to the low quality of products through the IMF foreign exchange crisis, and double punishment has increased due to the increase of the couple, which led to the growing tendency of night and holiday shopping, convenient and time-saving consumption. In addition, due to the generalization of large-scale purchase shopping accompanied by the family members and nuclear familyization, it reflects the demand for new types of discount that enable large-scale purchase of diverse goods at once and at once.

Second, in terms of supply, the government's policies to open the distribution market and relax regulations on the establishment of superstores have made it possible for large scale foreign stores to enter the domestic markets and promote the multi-storeization of large companies, and the development of a new city has made it easy to secure a site where large scale discount points can be located.

In conclusion, in a simple type of business which is divided into existing department stores and conventional markets, the discount points appeared as a new type of distributor that can satisfy the consumer consumption pattern, without being subject to time and spatial restrictions, which can lead to a reasonable price-on-on-on-op pattern at a reasonable price.

C) The type of discount stores and the Korean-type modified discount store are type of business that seeks differentiated price discount policies different from the existing retail business type, such as department stores, through the rationalization of distribution structure, and according to the traditional classification method (e.g., book-type), may be classified as follows according to product color.

Demark 7) Type of discount store

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However, as the Seo-gu discount point was introduced in Korea, it was not copied the Seo-gu form as it is, but it was settled in the modified and applied form to meet the Korean situation.

First, it is possible to classify goods into various types of discount points according to product color, but domestic discount points are operated in the form of a comprehensive discount store dealing with all food, daily necessities, clothing, etc., and there is no clear difference in the product color between discount points. Accordingly, foreign discount points entering the Republic of Korea are tendencying to enter the Republic of Korea, unlike the initial stage in which they maintained their own discount points.

Domestic discount points advocate the comprehensive discount point of Korean main food services, which sees Korean people's purchase practices as much as possible. For example, products are displayed at the height of ceiling suitable for Korean people's average height and snow height, direct delivery is displayed in a non- packing state, high-class store and service is operated in a high-class store based on high-class store and service, and according to consumers' use behavior pursuing convenience in use, it is mainly located in a large city which is a population-populated area rather than the outer range of Seo-gu food city, which is a population-populated area.

[Attachment 8] The difference between foreign discount and domestic discount points

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Examining the current status of domestic consumers' awareness and use of discount points through the Consumer Consumption Conduct Report in 2005, which was investigated by AC Hason on the current status of the use of discount points, the consumers visited more than once a month of large discount, 54% of consumers are used as the main consumption channel, and it was also the greatest amount of consumption.

[Attachment 9] Status of Use of Distribution Channels

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* Demarket was the highest frequency of using three times per week, but its product involvement level was the low product, and according to the above report, it was investigated that the consumers thought the most important approach to the price and the store as consideration when using discount points.

[Attachment 10] Items to be considered at the Time of Selection of Discount Point (unit: %)

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* The number of double answers is the one allowed for the primary consumption channel including discount points, and the map (33%) and the vehicle (55%) have been mainly used for the primary consumption channel including discount points, and the movement time was investigated to have the average of 12 minutes.

E.C. 11) The time of movement to the main consumption channel

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According to Article 8 of the Distribution Industry Development Act, there is no access barriers to the system because the large distribution business can be established only when it is registered with the local government. However, there is an indirect regulation because the local government regulates the location by the Building Act and the National Land Planning and Utilization Act.

A large city area is not easy to secure the location for additional entry due to the increase of real estate prices, but it is difficult to enter the large city area because of the increase of the initial entry cost (the cost of KRW 600 to KRW 100 billion).

In addition, even if local government's indirect permission is obtained, at least two-year periods are required from the securing of sites for new points of discount to the opening of branches.

Demark 12) The authorization process and required period relating to the departure of a new branch

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W from the legal and institutional perspective, the discount point occupies an independent position in the legal and institutional classification of distribution business.

In particular, it is clearly distinguishable from other distribution business in terms of scale of store, product color, price etc.

First, according to the Korean Standard Industrial Classification publicly notified by the Commissioner of the National Statistical Office pursuant to Article 17 (1) of the Statistics Act (see, e.g., ‘the 2nd sale'), the retail trade is divided into general retail business and specialized retail business, and the general retail business is divided into the area and product composition of the store.In the case of a general retail business, if the size of the store is more than 3,000 meters, it is divided into ‘general retail business', which is again divided into ‘general retail business' and ‘other large

According to these classification criteria, ‘other large-scale general retail businesses' are defined as ‘industrial activities that sell and sell all kinds of products such as foodstuffs, clothing, furniture, home appliances, cosmetics, precious metals, medicine, etc. under the single management system'. On the other hand, ‘department stores' are classified as ‘industrial activities that have sales facilities divided into a large number of stores generally managed at a certain place and sell all kinds of products comprehensively.' These department stores are, in general, categorized as ‘other large-scale retail businesses that conduct direct sales and calculation activities by unit of each store because exclusive sales clerks are fixed for each store.'

The Standard Industrial Classification System for Retail Business

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Second, according to Article 2 subparagraph 3 of the Distribution Industry Development Act and Article 3 [Attachment Table 1] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19542 of Jun. 22, 2006), the types of superstores are classified into discount stores, specialty stores, department stores, and shopping centers, and discount stores are "sale without the aid of the source of the source of the goods, etc." as "sale without the aid of the source of the source of the goods, etc." from "the store area of a square registry over 3,00 meters" to "the store area of a square registry over 3,00 meters."

E.C. 13) Division of superstore

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Third, it is common to distinguish the discount point from other distribution practices in consideration of the size of the store, the characteristics of the individual distribution business.

[Attachment 14] Status of Distribution Business

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* New-Arolet, 2001, the characteristics discount points of the aulet store including food and household products, have a certain degree of overlap between other distribution business and sales products, but is clearly distinguishable from various aspects, such as product price, product color, service, store size, consumer access rate (site), and convenience.

First, considering the price and product color aspect, the Posing learning in the distribution market for each distribution company (which refers to the activities of developing and communication product efficacy in order to form a desirable location for self-produced products in the mind of consumers) is distinguished from the price of the department store as follows, from the product value of the product, from the product value of the department store, from the product value of the department store, from the convenience store, Schlage, conventional market, and conventional market, from the product value of the product.

§ 4) Posting by type of distribution business

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Second, in addition to the price level as seen above, the product prices of goods similar to the product prices and the department stores have a big difference between the product prices.The discount store runs above 50% of the product prices and sells various products, such as clothes, household goods, and household appliances, while the department store sells the product, which exceeds 50% of the product prices of clothing, and sells the product of household goods or food.

Table 15) Sales of Goods by Type of Distribution Business (as of 04)

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* Only online shopping parts (excluding door-to-door sales methods)

Third, in addition to the number of items of goods as seen above, a large difference between a discount store and a specialty store with a price level shows a large difference in the frequency of consumers’ use. A large discount store with a large volume of daily necessities is 70% consumers ordinarily visit and use 2 to 5 times a month, while a specialty store with a gender in the fields of household appliances, computers, etc. is allowed to visit only when there is demand for the relevant product, so 60% of the consumers show the frequency of use not more than once a month.

Demark 16) The number of visits by the discount store and the specialty store for one month (unit: %)

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Fourth, even if the average store area is examined, the discount store is distinguished from other distribution business practices.The discount point is on the size of half of the department store, but it is on the average size of ten times rather than the market.

[Attachment 17] The average store area by type of distribution business (based on '04')

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Consumer awareness of the discount store

According to AC's investigation report on consumer consumption behavior 2005, 54% of the case of choice of the main consumption channel among the consumers under investigation, and 35% of the case of choice of the supermarket among the consumers under investigation, and 48% of the consumers using the main consumption channel are mainly at the discount point of 70% or more of their own consumption, and 34% of the consumers using the supermarket as the main consumption channel is 70% or more of their own consumption.In the event that the proportion of food consumption is expanded to 50% or more, 94% of their own consumption among the discount points and 90% of their customers among the supermarkets are being mainly consumed in the supermarket.

(i) As of the end of 2005, the regional distribution discount point of the discount point is established and operated by 18 business entities (in recent business combinations, Ireland and Dau Pudo calculated) as of the end of 2005, 298 branches nationwide. Examining the current status of distribution of the discount point, the Plaintiff, a acquiring company, operates 79 stores throughout the country and 16 stores in nine Cities/Dos, respectively.

[Attachment 18] Status of distribution of discount stores by region

A person shall be appointed.

1) New Zealand (10), 2001 Pulet (8), 2001, including a guardian club (1).

(ii) Coconco, a club, a group, a group, a group, a group, a group, a group, a group/bregly, a group, a tower/bbbin/Mea/Korea Round (total 12gs)

(j)regional competitive aspects of the discount points;

① Examining the Supreme Court Decision 5: (a) 23% of the total number of shares sold at the Plaintiff’s branch and the number of shares sold at the Plaintiff’s branch nationwide and the number of shares sold at the Plaintiff’s branch nationwide is limited to 23% of the total number of shares, and (b) 57% of the total number of shares, and (c) 77% of the total number of shares and the number of shares sold at a different price by region was 43% of the total number of shares.

The difference in the price for each branch office of the plaintiff

A person shall be appointed.

② Special discount events by each branch of the discount points are common in place to oppose the exercise of a new discount point or a new discount point in the same business district, or to increase its sales. Such special discount events are distinguishable from the exercise of a regular discount in an area where competition is highly likely to take place, and the former branch is conducting at the same time. The acquisition company also has held the special discount event 9 times at the 11 branch in 2004 and 6 times in 2005, 22 times at the 13 branch in 203, 16 branch in 204, and 28 branch in 205 every year.

[Attachment 19] The current status of holding of special discount events for Gaz.

A person shall be appointed.

* Regular discount events (at the same time) and open commemorative events at each point except:

③ The comparative shop of the reporting compensation system is, instead, limited to a competitor located within 5 km radius from the relevant branch office, and the price reduction measures after reporting compensation also take place at the relevant branch office, and the price for the relevant product is different by the branch office, as it does not apply to all branches across the country. Examining the current status of the implementation of the reporting compensation system, there are differences for each business entity, but the annual total number of compensation for four companies is rapidly increasing every year from 300,000 to 480,000 cases in 205. In addition, the number of compensation cases by the Plaintiff branch is 170,000 cases per year (203), 320,000 cases (204), 410,000 cases (205) every year.

[Attachment 20] Status of implementation of the lowest reported compensation system

(unit: case)

A person shall be appointed.

(k) Consumer discount store utilization status

(1) The distribution of customers by place of residence of a discount store can be grasped by the membership status of each discount store. The cumulative distribution by place of residence of these members and the cumulative sales by the members are as follows: First, the accumulated distribution by 16 points in the six regions of the Plaintiff is as follows: 8 points where at least 80% of the members are distributed within 5 meters from each branch, 7 points where at least 50-70% of the members are distributed, and 50% of the members are distributed within 5 meters from each branch, as shown in Table 21.

[Attachment 21] The current status of distribution of members by distance of the Plaintiff branch

A person shall be appointed.

The supplementary intervenor who is the acquiring company does not operate the membership system or points card system, but analyzes the rate of use of each point for customers who use monthly marina points each year, and according to the data, 70-90% of the customer subject to investigation is distributed within 4m radius.

The status of customer distribution at the branch offices assisting the participants in the table 22.

A person shall be appointed.

Through the current status of distribution of the members of the discount store as above, the distance of about 70% to 80% is about 5km in the case of Seoul or metropolitan areas, and about 10km in the case of local (port at port). The distance inside and outside 5 or 10km is about 15 minutes in each area. According to the Energy Management Corporation, the average driving speed at the market price of Seoul is about 21.8km and 21.8km in each area. In this case, the average driving speed at the market price of the fivekm is 5km and the average 13.76 minutes in each case is 5km. Considering the bypass of the road, most consumers are distributed within the maximum of 15 to 20 minutes.

(l) The result of the economic analysis by the plaintiff (No. 11)

The plaintiff requested a professor in B University economics to conduct an economic analysis in relation to the combination of enterprises of this case and submitted an analysis. Among them, the results of calculation and analysis of the price index by the Plaintiff's branch are as follows.

① From July 1, 2005 to June 30, 2006, which can best reflect the competitive status of the instant product subject to price index, an analysis period of one year shall be from July 1, 2005, and from June 30, 200, with a view to 64 points other than those of the Defendant’s relevant market definition standards (3,000m2 before July 1, 2005) where the size of stores and items to be handled fall short of 70 points (3,00m2 before July 1, 2005) of the Plaintiff’s entire sales period, 10,393 items (30.8% of total sales) with a view to 50,000 points above 64 points above, 10,393 items (30.8% of total sales) with a view to securing 10% of total sales volume, sales amount, and average sales rate of each item (30.6% or more of the above 64 points).

(2) Analysis results

As a result of simply comparing the price index of 64 points across the country of the Plaintiff, the difference between the store with the highest price index and the point with the lowest price index was found as follows: 3.83% from the price index of 2,972 items to the extent of 3.9%, i.e., 【1.9%.” Furthermore, as the price index for a large number of items is found, there is a small difference between branches, and the price index is calculated separately with the number of items included in the calculation of the price index, the maximum difference was 1.74-1.89% in the case of the price index of household electric, recreational sports, and fashion products. In accordance with the Defendant-related market definition criteria, it was found that the 111-point price index located in the area in which the Plaintiff is the monopoly (in the absence of one discount point within 5/10km) where the Plaintiff is the highest in the highest in the highest in the highest in each region (in the highest in 10%).

Table 23. Number of price index by store;

A person shall be appointed.

* The difference 100 x (the highest store price index - the lowest store price index) / the lowest store price index

[Ground of recognition] Facts without dispute, Gap evidence 1, 11, Eul evidence 1, the purport of the whole pleadings

(4) Determination

Article 2 subparagraph 8 of the general theory of defining the relevant market is defined as the area in which competition or competitive relations can be established by the subject, stage, or region of the transaction. Article 7 (5) of the Fair Trade Act provides that "If the price of a particular product traded is increased to a certain extent for a considerable period of time, a representative purchaser of the product may convert the purchase in response to the price". The regional market provides that "if the price of the product so traded is increased to a certain level of time, the price of the product in question can be converted to a certain area of time, the representative purchaser of the region can convert the purchase in response thereto if the price of the product in question is increased to a certain extent of time only, but only a certain area of time, the price of the product in question can be converted to a certain area."

위와 같은 상품시장과 지역시장에 대한 피고의 심사기준은 미국 법무부(DOJ)와 연방거래위원회(FTC)가 1992년 공동으로 만든 '수평적 기업결합에 관한 심사지침(Horizental Merger Guidelines)'에서 채택하고 있는 SSNIP 방법론을 도입한 것으로 받아들여지고 있다. 위 심사지침은 관련시장을 "유일한 현재 및 장래의 생산자인 가상의 독점 사업자가 적지만 의미 있고 일시적이지 않는 가격인상(Small but Significant and Non-transitory increase In Price; SSNIP)'을 할 수 있는 제품이나 제품군 및 지역"으로 정의하고 있다. 미국에서 실제적으로 SSNIP 방법론을 적용하는 방법으로는 임계손실 분석법(Critical Loss Analysis)이 주로 사용되고 있는데, 이는 가상적인 독점기업의 가격인상이 무력화될 정도의 임계손실을 계산하는 것으로서, 임계손실은 가격인상시 손실을 보지 않고 감내할 수 있는 매출감소율의 최대치를 의미한다. 실질손실이 임계손실보다 크면 가상적 독점기업은 SSNIP를 통하여 이윤을 제고할 수 없으므로 시장확대를 고려할 필요가 없고, 실질손실이 임계손실보다 적으면 가상적 SSNIP를 통하여 이윤을 제고할 수 있으므로 시장확대를 고려할 필요가 있게 된다.

B) Whether the determination of the relevant market was erroneous

The claim of the Plaintiff and the Intervenor in relation to the definition of the relevant market is that there is a fundamental error in that the Defendant, at the end, did not apply the SSSNIP methodology while defining the relevant market, that is, a lot of meaningful and temporary price increase, and consumers did not directly address the issue of where the scope of the goods or areas that are not converted into the purchase beyond the scope, and did not prove any possible proof as to the scope of the goods or areas that are not converted into the purchase. Accordingly, the Defendant’s determination of the relevant market without presenting a specific result of economic analysis while examining the combination of enterprises of this case is illegal.

As seen above, while defining the concept of the relevant market by introducing the SSSNIP methodology in the examination criteria, the defendant defines the relevant market by taking into account the similarity of the function and utility of the product, the similarity of the product price, the purchaser's awareness of the substitution possibility and related purchase behavior, etc. in the course of defining the relevant market, and stipulates that the regional market should be demarcated by taking into account the characteristics of the product and the seller's business ability, the purchaser's awareness of the possibility of transition into the purchase area, and the purchaser's behavior of conversion into the purchase area related thereto, etc. This is desirable to establish the relevant market by specific and empirical results in the determination of the relevant market. However, it may be difficult or impossible to conduct such economic analysis, and the results of the economic analysis may not be properly reflected. Thus, it should be viewed that the relevant market should be demarcated by taking into account not only the economic analysis but also the aforementioned various factors comprehensively.

However, it is difficult to define the relevant market by using the SNIP methodology and the discretionary loss analysis method actually used. This is because, to use SNIP methodology, statistically flexible index is difficult to compute a significant price index because the distribution market, especially large-scale discount market, is very diverse sales methods, including the kinds, packing methods, and prices of the goods traded, and it is difficult to compute a significant price index. As such, in the case of an enterprise that produces or sells a large number of goods, the method of defining the subject of the analysis from the beginning as the starting point of defining the relevant market and using them as the starting point of defining the relevant market is recognized in foreign countries (e.g., SNIP methodology, defined as the "Grory" and defined as the "Grory" price of the goods supplied in S service market and to define the consumer behavior included in such Grory market, and it is also applied to various methods of supplying the goods through the analysis of the goods purchased from each supplier.

In addition, it is difficult to define the regional market by applying the SSSNIP methodology even when the market for goods is defined as a group of goods that consist of a large number of goods. This is because it is very difficult for a large number of persons to calculate the price index. Accordingly, in relation to the regional market, the regional characteristics of the purchasing act are being dealt with as the starting point of the market definition. The local characteristics of the purchasing act are being dealt with as the starting point of the market definition. The local characteristics of the purchasing act can be identified through the data on the analysis of the consumer's purchasing act, the data on the sales strategies of the business operators, the conversion cost or travel cost to be paid when the purchase is converted from other business operators, the unique characteristics of the goods, and the forms of distribution.In the United States, there are cases where the regional market is demarcated by recognizing the regional characteristics as to the distribution industry, and in Europe, there are cases where the regional market is demarcated by administrative districts or corety.

Although it is argued that the economic analysis submitted by the Plaintiff calculated the price index applied to the case of Sauses. However, in the case of Sauses, the U.S. Federal Trade Commission failed to properly reflect consumers' purchase behavior by calculating the price index based on the frequency of price checking by Sauses, the leading item, the “price-free item”, the “Ne-free item”, and the “price-free item” in which the price index was calculated by dividing the selected items into three categories, namely, food, household and other items, and if it is difficult for the Plaintiff to determine the price index based on the regional retail market’s price discount, it is reasonable to view that it is difficult for the Plaintiff to use the market as a whole in light of the following factors: (a) if it is difficult for the Plaintiff to determine the price index based on the regional retail market’s price discount, it is more than 0 km than that of the Plaintiff’s new food, which is the largest part of the sales revenue, it is difficult for the Plaintiff to use the market at a price discount of 0 or more than that of the Plaintiff’s.

C. Whether competition restriction is recognized

(1) Grounds for recognizing the Defendant’s restriction on competition

The Defendant: (a) determined that the instant four areas are subject to restriction on competition, on the premise that the market concentration or market share is the most important factor to determine the restriction on competition in the relevant market due to the combination of enterprises, and that the monopoly or control is strengthened in the relevant market and thereby the free and fair competition is restricted; (b) under the premise that the market concentration or the market share is the most important factor to determine the restriction on competition in the relevant market, the Defendant selected and reviewed the seven areas based on the market concentration level set forth in the Fair Trade Act or the examination criteria, and then, taking into account the concentration of the following markets, the possibility of abuse of market control, the possibility of new entry, the possibility of collaborative acts, and the specific competition situation in the relevant market.

A) Market concentration level

① In the case of a regional market based on the result of market definition up to two stages in Incheon and Busan (including Gu roads and areas), the combined company becomes the first-class business entity, the aggregate share of the third-class three companies is 83.8%, the market share of the first-class business entity and the second-class business entity is below 25% after combining the difference between the first-class business entity and the second-class business entity, and thus does not constitute the presumption requirement under Article 7(4) of the Fair Trade Act: Provided, That the increase in the market share after the combination is 8.0%, and the market share gap between the second-class business entity and the third-class business entity is reasonable (hereinafter the same shall apply). Therefore, competition restriction requirements under the examination standard are satisfied.

If an administrative district excludes any other Gu road or Si interest zone, the market share of the company subject to the combination after the combination shall be increased from 26.1% to 34.5%, and the aggregate of the market shares of the upper three companies shall be 84.7%, and after the combination, the market share gap between the second and the third business is reasonable, so the relevant requirements for restriction on competition shall also be met.

(2) In the case of a regional market based on the result of market definition (including the over-concentration and Gun area) up to the second stage of the Annyang and Pyeongtaek village area, it does not meet the requirements for presumption under the law, since the share of the company subject to combination becomes one and the aggregate of three higher shares is less than 93.3%, and the difference between the first and the second grade business share is less than 20.7% and the second grade business share is less than 25%, it does not fall under the requirements for presumption under the law: Provided, That since the market share gap between the second and the third grade business is substantial, it satisfies the requirements for restriction on competition under the criteria for examination.

In the event that there is a different administrative district and the existence of main roads such as the first national highways excludes excessive and military dissemination, the market share of the combined company is 27.0% to 37.3%, and the aggregate of the market share of the third parties is 89.8%. After the combination, the market share gap between the second and third enterprisers is reasonable, and thus, the relevant requirements for restricting competition are satisfied in accordance with the criteria for examination.

③ After the combination of Daegu City and Busan District, a single company becomes a single business entity whose market share is 100%, and thus constitutes a requirement for presumption of competition restriction under Article 7(4) of the Fair Trade Act, and the relevant requirements for determination of competition restriction are satisfied.

(4) Po harbor areas.

After the combination, the combined company is the first-class business with a market share of at least 50%, the aggregate share of the third-class business is at least 100%, and the gap with the second-class business is at least 25/100, so it not only constitutes a requirement for presumption of competition limit under Article 7(4) of the Fair Trade Act, but also satisfies the requirements for recognition of competition limit under the criteria for examination.

B. According to the survey conducted on the business entity with a discount store for new entry, the number of branches that are scheduled to be newly located within two years from September 2006 at the same time is understood to be one individual in the area of Incheon and father-do, the regulation on the departure of the discount store, the problem of location and cost excessive, the long-term required period of time required, etc., are considered to be very low in the possibility of new entry within a period of not more than two years besides the above four points. If the above four branches are included, the market progress of the relevant area shall be changed as follows:

① At the end of the end of 2008 of the Incheon and Seocheon-do 2008, two competitors plan for the new establishment of three branches. Even if a competitor’s new establishment plan is included, the market share of the combined company (excluding Si/Gu) shall increase from 23.4% to 30.9%, thereby becoming the first enterpriser, and the aggregate of the market share of the third company shall be 75.7%. In addition, since the market share gap between the second and the third enterpriser after the combination is reasonable, even if the new establishment plan of the competitor is included, the requirements for restricting competition under the standard of review are still satisfied.

(2) Po harbor areas.

In addition, the market share of a company subject to combination shall increase from 36.7% to 53.6%, and the aggregate of the market share of the company subject to combination shall be 93.9%. In addition, since the market share gap between the company subject to combination and the company subject to the second-class business is reasonable, it still satisfies the requirements for presumption of competition limit under Article 7(4) of the Fair Trade Act, even if the new market share of the competitor is included in the new market share plan of the competitor.

Other competition-restricting factors arising from the combination of enterprises

(1) The possibility of explicit and implied agreements between the relevant business entity is increased by reducing the number of the business entities in the four areas of this case where competition-restricted competition is presumed or recognized by the market concentration of collaborative acts among the business entities.

② According to the result of the revolving analysis of the relationship between the lowest reported compensation system and the competition situation between the Plaintiff’s 69 branch offices in operation as of the end of 2004 and the minimum amount of compensation paid by the Defendant for the year 1, 2005 as basic materials, the Plaintiff’s branch office’s minimum amount of compensation can be seen as increasing the amount of compensation when the number of retail stores in the same business district as that of the Plaintiff exceeds the minimum amount of compensation. This means that the number of retail stores in the same region exceeds the number of competing stores in the same region.

(3) According to the survey of the exchange rate AC Moson between discount points, most consumers who use the horses as the main discount point have been found to have been aware of the horses and home fluor most closely as the main substitute. According to this, if the monthly marina ceases to exist due to the instant combination of enterprises, most consumers who have used the monthly marina may be expected to move to the marina or home fluor. Therefore, in terms of the alternative nature recognized by consumers, the combination between the marina or home fluor sets is more restrictive than the combination between other discount points and the monthly fluor.

C. Analysis of competition limitation by region

① After the combination of the instant enterprises in Incheon and Busan, the upper three market share reaches 83.8% [32.9% of the combined society company, Home Pluss 29.6% of thisland and Darar Plus 4). Moreover, the market share (8.6%), which is the fourth company, reaches 92.4% of the higher-class four companies. The first four companies agreed to refrain from price competition in the relevant area, and thus, the possibility of this attempt was high to return to the pertinent area. As such, even if the first four companies agree to refrain from price competition in the relevant area, the possibility of this attempt was high to return to the competitor in this case.

(2) An area within a mountain or fishing village.

As a result of the combination of enterprises in this case, the number of competitors has been reduced from five to four, thereby deepening more. As such, the reduction of the number of competitors may cause competition restriction in accordance with the cooperative effect. Moreover, the Plaintiff’s inner point and the Intervenor’s ordinary village in this area are closely related to substitution of products in terms of mutual distance (2.6 km) and product color. Therefore, even if the price of the products sold at the end of the month after the combination of enterprises in this case increases to a certain degree, a number of consumers who move to another discount will be transferred to the Plaintiff’s inner point, thereby raising the price without loss is more likely than before the combination.

(3) Daegu City/Gyeongsan District

The exclusive market in which only the plaintiff exists due to the combination of enterprises of this case.

(d) Port Area:

Before the combination of enterprises in this case, the Plaintiff had 50% or more market, and there was no small and medium-sized business operators only running a business in Daegu and Northern areas, such as Measte and Gaaste, except the supplementary intervenor. Accordingly, the Plaintiff’s active market share through the combination of enterprises in this case would deepen competition by absorbing the Intervenor who was closely replaced by the combination of enterprises.

(2) The plaintiff and the supplementary intervenor's assertion

(A) Whether Article 7(4) of the Fair Trade Act applies the presumption of competition restriction under Article 7(4)

In certain cases, Article 7(4) of the Fair Trade Act, which provides for the presumption of competition-competitiveness as to the combination of enterprises, shall be interpreted to apply only when the presumption requirement is met only through the combination of enterprises, and it shall not be applied to the combination of enterprises conducted under the condition that the presumption requirement is met in the market. The reason is that there is no causal link between the combination of enterprises and the concentration of markets (in this case, there is no difference between the combination of enterprises) because, prior to the combination of enterprises, there is a high market concentration and there is no high market concentration.

B. After combination, the possibility of abuse of market power(s) basically takes the highest feature of the lowest price, and the product is not a differentiated market, but a market is not a market that can exercise a single effect through regulating supply amount as in the manufacturing industry. The Plaintiff’s economic analysis result reveals that the difference between the store with the highest price index and the store with the lowest price index was 3,83% from the price index of 2,972 items, i.e., 【1.9% from the highest price index. In addition, in the case of the household electric power, Lebs and fats products with the small number of items included in the price index, the highest number of items is merely 1.74-1.89%, and it is presumed that the difference between the store and the store with the lowest price index was less than that of the branch with the highest competitive area. Furthermore, the Plaintiff’s average price index of the 111 branch offices in the Plaintiff’s monopoly was less than that of the store with the highest price index.

In light of the above circumstances, it cannot be deemed that the combination of enterprises of this case is likely to abuse the market control power through price increase.

Possibility of the collaborative act after the combination

① Under the Defendant’s standard of examination, the possibility of the collaborative act is high in the event that the homogeneity of the goods supplied by the competitor is considerably high. In this regard, the discount point is the most appropriate type of business for the collaborative act.

② The large-scale discount market is a market for three to four enterprises, and there is no particular change due to the combination of enterprises in this case. In particular, while the market share of the upper three enterprises has already been exceeded 75% prior to the combination of enterprises in this case, the case where there was a problem of collusion in the discount store and the distribution industry has already been at least once.

The defendant's criteria for determining the possibility of collaborative acts are whether the prices of similar goods traded in the relevant trade area during the recent years have been significantly higher than the average prices of similar goods that do not belong to the same trade area. The large discount is the type of retail trade which is the lowest average price among retail trade types.

④ Under the Defendant’s review criteria, the issue of whether the demand for goods traded in the relevant business area is below the change and whether competitors occupy a stable market share for several years is determined as the criteria for determining the possibility of collaborative act. The upper five business entities of the discount store have changed every year, and the market share has also been rapidly changed, and the Plaintiff’s market share continues to decline as competition in the Incheon, Seocheon, and Pohang Port area has risen.

⑤ Therefore, it cannot be said that the possibility of collaborative act is increased due to the combination of enterprises in this case.

(d) The possibility of new entry;

By the end of 2008, the Defendant appears to have newly opened three points in the Incheon and Seocheon area (scambling point, scambling point, scambling point, scambling point), one point in the port area ( homeburging point) and one point in the port area (scambling point) from among the four areas of this case, but only up to now, the Plaintiff was anticipated to have newly opened 11 points in the area of this case (scambing point converted from the existing main line) and such new points are to be sufficiently reflected in the understanding of these new points, the market concentration will be lower than before the combination in the relevant market demarcated by the Defendant.

(3) Facts of recognition

(A) Changes in market concentration and the possibility of new entry;

① As of the end of 2005, there were 22 large numbers of points, such as the Plaintiff’s 1,00 volume point, 200, dong Incheon, Incheon, the Intervenor’s mooring point, middle-dong store, Incheon, and Incheon as of the end of 2005. The Defendant was anticipated to start a new store in the original region. However, in fact, the Defendant was anticipated to start a new store in the 3rd half of the 2006 area, the 3rd point in the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 2nd part of the 3nd part of the 3nd part of the 2008 area.

The details of the change in the concentration of the market in Incheon and Seocheon area (excluding Si interest, Gu road).

A person shall be appointed.

② As of the end of 2005, six major points, such as the Plaintiff’s massage points and the Intervenor’s ordinary village points, etc. In the area, the Defendant appears to have no possibility of a new departure in the original area. However, around June 2008, the Defendant was scheduled to newly enter the home spons during the home sponsing period. If the existence of main roads, such as the national highways, etc., is to be excluded from the area, the details of changes in market concentration are as shown in the following Table 25 if it is intended to secure the site of the GS the Gu and to newly set a discount point while the GS the date of the GS the spons period, but the specific construction or opening period has not yet been determined, and the following Table 25 is not reflected therein).

Details of changes in the concentration of the market in the inside and near village area (excluding the river, Gun, and Gun area).

A person shall be appointed.

③ In the Daegu City/Gyeong-si District, there is no new starting point of another discount point in the near future (the Plaintiff’s assertion that this area will be a new starting point in the near future, but there is insufficient evidence to acknowledge only the items in the evidence No. 16-9, No. 10, and No. 17-1, and No. 17-2, and no other evidence exists to support the change in the market concentration of this area). The changes in the market concentration of this area are as shown in the following Table 26).

Details of the changes in the concentration of the market in Daegu City/Gyeongsan District;

A person shall be appointed.

(4) Po harbor areas.

As of the end of 2005, the Plaintiff’s content and the Intervenor’s capture point

There were four large numbers of points, such as the Defendant, at the beginning, anticipated that only the Home Berer Posting point will be new points in this area. However, in fact, the Home Berer Basing point was first set on March 1, 2007, and the Home Berer Posing point on November 29, 2007 (the existing Home Emers also was converted into the Posing point on December 2006). The changes in the market concentration of this area are as shown below.

E. The details of the change in the concentration of the market in the port area under paragraph (27) of the Table

A person shall be appointed.

(b) The current business status, etc. of large discount stores

(1) The increase rate of sales and the trend of change of operating profit rates from 2003 to 2005 of five large enterprises in the Republic of Korea shall be as follows:

The rate of increase in the sales of large discount store (%) in the attached Table 28

A person shall be appointed.

Table 29. Large discount operating profit rate (%)

A person shall be appointed.

② Until the time of the combination of enterprises in the instant case, the major industry was not subject to sanctions against the Defendant on the ground of unfair collaborative acts under the Fair Trade Act.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 23, Gap evidence 16-1 through 8, 11, 12, Gap evidence 17-3 through 8, Eul evidence 7-1 through 4, Eul evidence 8-1 and Eul evidence 8-2, and the purport of the whole pleadings

(4) Determination

(A) Criteria for limiting competition

For the purpose of Article 7(1) of the Fair Trade Act, the term “business combination practically suppressing competition” means the combination of enterprises that reduce competition in a particular business area and cause or threaten to cause impacts on the determination of price, quantity, quality, and other terms and conditions of trading of goods to a certain extent, or significantly strengthen such situation. Article 7(4) of the Fair Trade Act provides that the aggregate of market share of a company involved in the combination of enterprises (referring to the aggregate of market shares of affiliated companies) falls under the requirements for presumption of market-dominating enterprises (Article 4 of the same Act) and the aggregate of market share is first in the business area, and the aggregate of market share of the company of second degree (referring to a company of first degree among the companies other than the party company) is 25/100 or more of the aggregate of market share of the company, the restriction on competition should be presumed if the aggregate of market share of the company is 25/100 or more. In addition, the issue of whether competition is restricted shall be determined at first of all, taking into account the overseas market concentration before and after the combination of enterprises, the possibility of new competition, possibility of new competition.

(B) Whether the provision on presumption of competition restriction applies

The defendant judged that the restriction on competition is presumed to be established under Article 7 (4) of the Fair Trade Act in Daegu City/Gyeong-si and Gyeong-si area and port area. According to the above, since it is recognized that two areas were markets meeting the requirements for the restriction on competition under the above provision even before the combination of enterprises in this case, even before the combination of enterprises in this case, if the above presumption provision is applied to the combination of enterprises in the market where the above presumption provision is applied because the market concentration is high and the first level of market concentration is presumed to be anti-competitive, there is no room to see that any combination of enterprises in the market is presumed to be all anti-competitive. However, if a combination of enterprises takes place in the market where the requirements for the presumption of restriction on competition are already met, the possibility that competition will be restricted by the reduction of the competitor, and if the above presumption provision is not applied to the combination of enterprises in the first place which meet the requirements for the restriction on competition under Article 7 (4) of the Fair Trade Act, the plaintiff's assertion that the above presumption provision would be applied only to the market share in the market share.

① According to the above facts, the following circumstances are acknowledged in relation to the trend of changing the market concentration level and the possibility of new entry. In other words, ① In the case of Incheon, Seocheon area (excluding Silcheon and Gu roads), the number of competitors due to the combination of enterprises in this case shall be reduced from 7 to 6, and the number of competitors shall be reduced from 7 to 6, and the company involved in the combination of enterprises shall be the first one. However, considering the new launch points, the number of competitors shall be restored to 7, and the expected share of the company involved in the combination of enterprises shall be restored to 2, and five more more, more than 27, more than 5, at the time of the combination of enterprises.

Without considering the new departure point, the number of competitors of the company involved in the combination of this case shall be reduced from five to four. The number of competitors of the company involved in the combination of this case shall be reduced from 37.3%. However, considering the new departure point, the number of competitors shall be recovered to 5 and the expected share of the company involved in the combination of this case shall be reduced to 33.1% because the number of competitors is reduced to 32.6%, and the existing 1 or 2 (including GS LGS subjects) increase to 7 to 78%. In the case of the company involved in the combination of this case, the number of competitors of the company involved in the combination of this case shall be reduced to 10% due to the combination of this case, and there shall be no new 37% increase to 4% due to the combination of this case.

② In relation to the possibility of a collaborative act, the defendant's standard of examination is to determine whether the price of goods traded in the relevant trade area has been significantly higher than the average price of similar goods that do not belong to the same trade area for the last several years, whether the competitive enterpriser occupies a stable market share for several years, whether the homogeneity of goods supplied by the competing enterpriser is considerably high, whether the production and sale conditions between the competing enterpriser are similar, and whether there was a previous unfair collaborative act from 2001 to 2005. According to the above facts, the large-scale discount industry continues to change from 2003 to 2005, while the large-scale discount rate and operating profit rate from 203 large-scale enterprises from 203 to 205 are not significantly changed, and it is doubtful that the Intervenor's potential increase in sales from 2003 to 205 to 2005 to 205 to 2000 to 205 to 200 to 205 to 200 to 200.

③ In addition, according to the economic analysis submitted by the Plaintiff (as seen earlier, it cannot be said that part of the result is denied in relation to restricting competition). The Plaintiff’s difference between the point with the highest price index and the point with the lowest price index was 3,83% from 2,972, namely, 【1.9%, the difference between the 11 average price index of the point located in the area with the monopoly and the 111 highest competitive area was 2% from the 11st average price index. In light of this, it is difficult to conclude that the Plaintiff has abused the market power in the monopoly area.

④ Meanwhile, as seen earlier, the large-scale store market may be distinguished from the distribution business attitude such as department stores or Schlage, but it cannot be denied that the large-scale store still serves as an adjacent market and maintains a certain competitive relation with the above distribution business.

⑤ Examining whether competition restriction by region is recognized by comprehensively taking into account the trends of change in market concentration, possibility of new entry, possibility of collaborative act, similar goods, existence of adjacent markets, etc., first of all, in the case of Daegu Metropolitan Area and Busan Metropolitan Area, the provision on presumption of competition restriction under Article 7(4) of the Fair Trade Act is not only applied, but also in light of the fact that the market concentration is 100% due to the instant combination of enterprises and that there is no plan for new entry in the near future, the restriction on competition caused by the instant combination of enterprises is recognized.

Next, according to the above presumption of competition limitation applies to the port area. However, in the case of the business combination of this case, the number of competitors is reduced from four to three, and the share of the company involved in the combination of this case is 74.3%. However, the number of competitors is expected to increase to five, and the share of the company involved in the combination of this case is expected to decrease to 43.7%. Thus, the degree of mitigation of market concentration due to the new departure seems to be reasonable. From 2001 to 205, the market share increase rate of sales from 2003 to 205 to 2005 to 2005 to 2005 to 2005 to 2005 to 2005 to 2005 to 2005 to 19.

In the case of the remaining Incheon, Busan, Ansan, and Yangyang, according to the facts seen earlier, it is difficult to view that the combination of enterprises in this case has a big change in the market concentration, and it is difficult to deem that there is a restriction on competition since the defendant's proof of the possibility of collaborative act, etc. is not sufficient. Accordingly, it is difficult to deem that there is a restriction on competition

The argument of the plaintiff and the assistant intervenor is justified only for the three areas above.

D. Whether the effect of efficiency promotion is more than the negative effect of restricting competition

(1) Article 7(2) of the Fair Trade Act provides that the Fair Trade Commission shall not apply Article 7(1) to a business combination recognized as one in which the effect of efficiency increase that is difficult to achieve through a method other than the business combination in question is greater than that of restricting competition (Article 7(1) of the same Act. In this case, the relevant business entity shall prove whether the business combination satisfies the requirements. In determining the effect of efficiency increase that is unique to the business combination in question, it shall be determined on an individual basis by comprehensively taking into account the aspects of production, sale, research and development, etc. of the relevant business and the aspects of balanced development of the national economy, but such efficiency increase effect should be clearly determined within the nearest time (see, e.g., Supreme Court Decision 2006Du6659, May

(2) However, according to the above, since the restriction on competition caused by the combination of enterprises of this case is recognized only in Daegu City and Busan City, the issue of whether the effect of efficiency increase is more than the harmful effect of competition restriction should be examined only in this area. The statement of evidence No. 11 alone is insufficient to recognize it, and there is no other evidence to acknowledge it, the plaintiff and the supplementary intervenor's assertion in this part is not acceptable.

E. Illegality of transfer order

(1) Whether the transfer order was unlawful against the plaintiff only

According to the above facts, the plaintiff acquired 100% of the shares of the supplementary intervenor through the combination of enterprises in this case and practically controlled the overall management of the supplementary intervenor. Although the legal owner of each branch office subject to the transfer order in this case may only be determined by the sole shareholder of the supplementary intervenor even though the supplementary intervenor is the supplementary intervenor, there is no express provision that the acquiring company should be the party to the disposition together with the supplementary intervenor when issuing the corrective order for the combination of enterprises in this case. Therefore, the defendant cannot be deemed to have committed any substantial or procedural error on the part of the supplementary intervenor by issuing the transfer order only to the plaintiff in this case. Accordingly, the argument against the plaintiff or the supplementary intervenor cannot be accepted.

(2) Whether the principle of proportionality is violated or not

The defendant, while issuing the transfer order of this case, limits the object of transfer to a large general retail business with the exception of department stores to a business entity that does not belong to the upper third company based on the sales amount in 2005. Thus, we examine whether this violates the principle of proportionality.

The principle of proportionality (the principle of proportionality) refers to the constitutional principle that the means to achieve a certain administrative objective should be effective and appropriate to achieve the objective of the objective, and as much as possible, the infringement upon the public interest is intended due to the introduction of the means, and the transfer order of this case aims to eliminate the substantial competition-restricting effect caused by the combination of enterprises in this case. However, in the case of Daegu Urban Area and Busan Urban Area, there are only the Plaintiff and the Intervenor except for the Plaintiff (in the case of an enterprise belonging to the upper 3 company based on the sales standard, there were no high 3 companies). Accordingly, it is difficult to find a reasonable reason to exclude the upper 3 company based on the sales standard from the transfer. On the other hand, it is difficult for the Plaintiff to color the subject of transfer except for upper 3 companies under the circumstances of the Korea's discount industry where four-5 companies already form an excessive system, and there is no possibility that the Plaintiff would have suffered considerable economic loss due to the Plaintiff's sale of the land in this case.

F. Sub-decision

Therefore, the instant disposition is unlawful for all of the four regions of this case.

5. Conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is justified and it is so decided as per Disposition.