2012Nu28973 Revocation of corrective order

Hanjin Industries Co., Ltd.

Fair Trade Commission

May 28, 2014

July 9, 2014

1. The part of the "construction tools" under Paragraph 1 of the correction order stated in the separate sheet shall be revoked.

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

The Defendant’s corrective order stated in the attached Form No. 2012-199 against the Plaintiff on August 31, 2012 shall be revoked.

1. Facts recognized;

A. Status of the plaintiff, etc.

The plaintiff and Daelim Industry Co., Ltd. (in the case of a corporation for convenience, the "stock company" does not separately state the part of the corporation's name among the corporation's name), treatment construction, Samsung C&T construction, SS construction, sscco construction, modern construction, modern industrial development, Gyeongnam-nam industry, goldwol construction industry, goldwol construction, scambho global construction, spul global construction, spul global construction, spulic construction, spuling construction, spopic construction, spopic construction, spopic construction, etc. (hereinafter referred to as "19 companies, such as the plaintiff, etc.") are corporations with construction business's business purposes and business under Article 2 subparagraph 1 of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act").

(1) Promotion of 'Korean-do canal construction project' and organization of consortiums.

(A) In order to improve the distribution system and secure water resources, the government promoted a "project for the construction of inland waterways" in the form of a public-private partnership project (hereinafter referred to as a "public-private partnership project") from December 2007, for the construction of inland waterways (hereinafter referred to as a "large-scale canal project of this case").

(B) At around January 14, 2008, five companies with the value of construction capacity of 1-5 in 2007, including Daewoo Construction, Samsung C&T, Hyundai Construction, Hyundai Construction, Hyundai Construction, 2007, composed of a consortium for the implementation of the instant large canal project. At around 14, 2008, two companies concluded a consortium for the implementation of the instant large-scale construction project. At around 12-20, nine companies with the value of the said construction capacity, including Samsung T&T, Samsung T&T, Hyundai Construction, 200, 1-5, Hyundai Construction, 4% of the value of the said construction capacity, 11-C&T, Hyundai Construction, and 4% of the value of the instant large-scale construction project (the value of the said construction capacity as a single-generation company, 4% of the existing construction project, including Hyundai Construction Co., Ltd., Ltd., 208, 40% of the total construction capacity of Hyundai Construction Co., Ltd.).

(C) On the other hand, on January 2008, five companies consisting of separate consortiums to promote the canal project in the instant case (hereinafter “existing Esc construction consortium”) around 6-10 on the basis of the assessed value of the above execution capacity, including the scco construction, modern industrial development, lot construction, Sc rink construction, and gold industry.

(2) Conversion into a 'fourth River Slaughter Project'

(A) As the opposing opinion on the instant large canal project continues, the government declared the suspension of the project on June 2008. After that, the former Ministry of Land, Transport and Maritime Affairs prepared from October 2008 to April 2008 “the instant four projects” (hereinafter “the instant four projects”). On December 12, 2008, the construction technology researcher ordered the instant four projects to the Construction Technology Research Institute. Accordingly, the construction technology researcher requested the establishment of the master plan to six companies such as the same engineering among the consortiums belonging to the consortiums.

(B) On December 15, 2008, the Balanced National Development Committee decided to revise the instant large canal project to the instant four major lecture projects, and finally finalized and announced the instant four major lecture projects implemented by the method of regional briefing sessions, expert advice, public hearings, etc. (hereinafter referred to as “the instant four major lecture projects”).

(C) On the other hand, in October 2008, the existing KS construction consortium dismantled the process of settlement by taking into account the business conversion as above. However, the existing Modern Construction consortium changed its name into the name of the 'Gyeong canal joint office' operated for the instant large canal project and operated it until May 2009. The bid on some sections of the 4 large river project in this case.

(1) On February 9, 2009, the Public Procurement Service publicly announced a bid for construction of Geum River Section 1 (Seoul) which is the leading project of the instant fourth lecture project. The tender for the construction project of Geum River Section 1 was involved in treatment construction, Samsung C&T, and KS construction, and treatment construction was awarded a successful bid on May 14, 2009.

(2) On April 2009, the 15 construction sections of the 4rd River project in this case were finalized, and the Public Procurement Service publicly announced the bidding on June 29, 2009. However, in the case of the 32nd construction sections of the 32nd construction in the 15th construction sections, the 13th construction sections except the 2nd construction sections of the 32nd construction in the 32nd construction in the 15th construction sections, and the 32nd construction sections of the 32nd construction in the 32nd construction sections, both the 32nd construction sections and the 34th construction sections in the 32nd construction sections of the 15th construction sections were to be excluded from the tender of the 32nd construction sections of the 32nd construction sections of the 32nd construction sections of the 15th construction sections.

(3) On the other hand, it is not absolutely prohibited that the enterpriser's participation in the competitive bidding method of construction project conducted in the financial method is absolutely prohibited. However, the main text of Article 8 (4) of the "Special Claim for Tender for Construction Project, such as Package Deal Projects" (hereinafter referred to as the "Prohibition Clause of this case"), which is the execution standard of the Public Procurement Service, provides that "in the case of construction works of civil engineering, construction works, and industrial facility, the main contractor shall not form a joint supply and demand organization between companies within top ten of the appraised value of construction works under the Framework Act on the Construction Industry or industrial facility construction works."

However, the Public Procurement Service made it clear that the formation of a joint supply and demand organization is not allowed in accordance with the prohibition clause of this case, while publicly announcing the bidding on the 15 sections of the Geum River and the 15 sections of the 4th River project of this case.

D. On August 31, 2012, 19 companies including the Plaintiff, etc. agreed to divide a certain amount of shares for the instant four lecture projects from January to April 2009, and Article 19(1)3 of the Fair Trade Act was violated by the Defendant’s disposition Defendant issued a corrective order as shown in the attached Form (hereinafter “instant disposition”).

[Reasons for Recognition] No dispute, Gap evidence Nos. 1, Eul evidence Nos. 1, 2, and 6 (including various numbers, if any) and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. Judgment on the Plaintiff’s assertion

(1) As to the existence of share agreement

(A) Summary of the Plaintiff’s assertion

As alleged by the Defendant, the Plaintiff did not agree to divide the shares of other construction companies with respect to the instant 4th class project. The evidence cited by the Defendant is irrelevant to the share agreement on the instant 4th class project, which was conducted as a financial project, and the Plaintiff did not receive any share in the instant 4th class project with respect to the said 15th class project.

Nevertheless, the Defendant: (a) deemed that the Plaintiff agreed with other construction companies on the share of the instant 4th class project; and (b) thus, the instant disposition was unlawful.

(B) Determination

In full view of the following circumstances, the facts acknowledged above and the facts acknowledged as above, Eul evidence Nos. 4 and 10-29 (including branch numbers if there are branch numbers) and the purport of the entire pleadings, the plaintiff can sufficiently recognize the facts that the collaborative act of this case was committed. Accordingly, the plaintiff's allegation in this part is without merit.

1) Comprehensively taking into account the following historical elements: (a) five companies belonging to the pre-existing Escopic consortiums around January and April 2009 combined with the pre-existing Hyundai Construction consortiums; and (b) with respect to the instant four projects, a consortium consisting of 19 companies, including the Plaintiff, etc. (hereinafter “integrated consortium”), and further, the shares of each company belonging to the integrated consortiums under the lead of modern construction.

A) The officers or employees of the existing KS construction consortium and the existing construction consortium affiliated with the existing KS construction consortium were affiliated with the existing modern construction consortium in the order of January and April 2009, when undergoing an investigation into the collaborative act of this case from the Defendant (hereinafter “instant investigation”). Accordingly, the Plaintiff et al. discussed about the 4th class project of this case by the 19 officers including the Plaintiff et al., and discussed about the 4th class project of this case, and concluded an agreement by each company, such as re-resolution of the shares of the existing construction consortium affiliated with the existing modern construction consortium.”

In particular, A, as an executive officer in charge of modern construction, led the operation of the existing Hyundai Construction Consultative Body, made a concrete statement on the composition of the integrated consultative body and the process of the agreement on shares following the start from January 2009 to the end of April, 200 (it has been entering the existing Hyundai Construction Consultative Body. The interests of each company have been in dispute and it was difficult to determine through the meeting. The interests of each company were the same as that of the final decision, and individually talked."

B, as its officers, was recommended by “A to combine with the existing Hyundai Construction Consultative Body at around January and February 2009, at the time of the investigation of this case, at the time of the investigation of this case, B, which led in the operation of the existing SK construction Consultative Body, was to contact with the existing Hyundai Construction Consultative Body separately. The existing SK construction Consultative Body delivered the above contents to four officers of the SK construction Consultative Body, and notified each of them. The remaining four companies participated in the existing Hyundai Construction Consultative Body. The existing SK construction Consultative Body (existing Hyundai Construction Consultative Body) was added, and the previous shares were changed, and the previous shares were reduced, and the remaining nine shares were increased, and the remainder of nine companies are known to have increased.” It is consistent with A’s statement in the important part.

B) The existing modern construction consortium constituted a management committee and consulted on the operation of a consortium, etc., by setting up a management committee, for treatment construction, Samsung C&T, ZS construction, modern construction, and large forest industry, which is the higher of five companies.

However, around April 2009, KS construction led the existing KS construction consortium was added to operating committee members. If 5 construction companies affiliated with the existing KS construction consortium did not coincide with the existing KS construction consortium, it is difficult to understand the reasons why KS construction was added to operating committee members as of the appraised value of the performance capacity in 2008.

C) A around April 2009, notified the executives in charge of the 19 companies, including the Plaintiff, individually, of the company’s shareholding ratio, and required them to affix their seals to “the 4th River Basin Development Project Agreement” (hereinafter “the instant agreement”). However, the instant agreement explicitly states that the company’s shareholding ratio is 8.0% for modern construction, 9.0% for scam, 6.9% for scam, 6.0% for modern industrial development, 4.2% for scam, and scam construction, and 3.3% for 3.3% for scam.

On the other hand, on April 6, 2009, C, an employee in charge of the Plaintiff, drafted a written statement (No. 4-1) stating that "the change of equity shares in a public-private partnership project in the fourth River basin" (No. 4-1), and the representative director of the Plaintiff, on April 9, 2009, finally approved the said written statement. However, upon the participation of 19 companies in the fourth river project in the said written statement, the said written statement added 5 companies, such as SK construction, etc., and changed the shares of the highest 5 companies, and the Plaintiff’s shares increased from 3.0% to 3.3%." In addition, it stated a different statement to approve the seal affixed to the instant agreement. In addition, the employees in charge of the existing construction consortium, from April 2009 to April 5, 2009, prepared a joint agreement with the Plaintiff, thereby promoting the instant settlement of shares.

D) In the case of 16 others, including the Plaintiff, etc., who participated in the integrated consortium other than the construction, two mountain construction, and Dong construction, declared that they should withdraw from the integrated consortium due to their respective shares set under the lead of modern construction. There is no evidence to acknowledge that there was no evidence to support that there was a demand for re-resolution of shares or that there was withdrawal from the integrated consortium.

2) The nature of the share agreement

In full view of the following circumstances, around April 2009, 19 companies, including the Plaintiff, were aware of the fact that all or most of the instant 4 major projects will be carried out as a financial project, and it is recognized that the agreement on shares was reached with respect to the entire project, and it does not seem that such agreement on shares was carried out solely in mind.

A) As seen earlier, on June 2008, the government declared the suspension of the instant large-scale canal project, which was being promoted for a build-transfer project, and decided to implement the instant four projects on December 15, 2008. However, there is no fact that the government proposed the instant four projects with respect to a build-transfer project, or the government was promoted for a build-transfer project. Rather, in the case of the Geum River project publicly announced by the tender on February 9, 2009, prior to the agreement of the said 19 companies, including the Plaintiff, it was carried out as a financial project.

B) At around October 2008, five companies, such as KS construction, were already dismantled in consideration of the government’s business transition in preparation for build-transfer-lease projects. In this regard, B stated that “When the instant investigation is conducted as a financial project, the construction companies belonging to the KS construction consortium removed the consortium by consultation around October 2008,” and stated that “The reason for the removal of the consortium changes from the financial project.”

C) At the time of the instant investigation, D, an executive officer of the East Engineering, was officially converted into a financial project from the time when it was conducted by the Balanced National Development Committee for the instant four projects. Build Transfer projects can begin only after the review of the Public Investment Management Center’s eligibility for build-transfer-lease projects. However, after December 23, 2008, D, at the request of the Korea Construction Technology Institute, stated that it was not a project that could have conducted a review of the eligibility for build-transfer-lease projects, and there was no proposing company. However, D, at the request of the Korea Construction Institute for Technology and Technology, was able to obtain necessary information through a designer regarding the establishment of the instant four-party project, which was conducted by the East Engineering as a main contractor, and during that process, it is determined that Hyundai Construction was recognized that the instant four-party project will continue to be a financial project. In fact, F, which was the Public Construction Association for the instant four-party project, prepared an order to suspend the implementation of the project at the time of the request to perform the project.

On the other hand, at around March to April 2009, A, while leading the integrated consortium, explained the progress of the instant fourth lecture project and the direction of the future promotion in the joint office or the hotel located in the Gangnam-gu Seoul Metropolitan Government, Yongsan-gu, Seoul, to the 19 executive officers of the Plaintiff et al. on several occasions, and adjusted the shares of each company. It is difficult to find reasons for not sharing information that the instant fourth lecture project will be implemented as a financial project with other 18 construction companies.

In light of these circumstances, 19 companies, including the Plaintiff, were aware of the fact that the instant fourth lecture project would have already been conducted through A, etc. before the share agreement on the instant fourth lecture project was reached.

D) When undergoing the instant investigation, construction officers and employees participating in the consortium comprised of 19 companies including the Plaintiff, etc. stated to the effect that, with respect to the nature of the share agreement on the instant 4 venture projects, they were understood or expected to include the share of the instant 4 venture projects promoted by the financial project instead of the instant 4 venture projects. In particular, F continued to engage in the instant 4 venture projects by April 2009, while engaging in the 2009 project, and participated in the meetings related to the financial project since April 2009. Since April 2009, there was a meeting responding to the 4 venture projects. The amount of share was secured by any method. The details that the Plaintiff, etc. stated that the 19 venture project had been leading project, and that the 19 venture project had been secured by the 2 venture project, and that the agreement on the entire 4 venture project was clearly made, regardless of the form of the Plaintiff’s share.

(2) As to whether competition-restricted exists

(A) Summary of the Plaintiff’s assertion

In full view of the following circumstances, there is no effect of restricting competition in the instant collaborative act.

그럼에도 피고는 이 사건 공동행위의 경쟁제한성이 있다고 보아 이 사건 처분을 하였ㅇㅁ로, 이 사건 처분은 위법하다.

1) The Plaintiff participated in two sub-sectors among the 15 sections of the instant four projects within the scope of the execution capacity. Therefore, the possibility of participating in the competition of other construction companies is enhanced or the possibility of participating in the competition is not reduced on the contrary, on the ground that the instant collaborative act does not exist, among the 15 sections of the instant fifteen projects of the 15 sections of the instant four projects. In addition, the instant four projects were difficult to have been effective from the beginning due to their characteristics.

2) Since the instant collaborative act was in violation of the Fair Trade Act, the agreement among the enterprisers, which was originally not hedging on the violation of the Fair Trade Act, was unlawful due to the change of governmental policy, it should be viewed differently from the general bid collusion.

3) The overall economic efficiency, such as successful completion of construction works in short air as originally intended by the government, has been maximized by promoting competition through the instant collaborative act, reducing the unnecessary costs of construction companies, and concentrating their capacity by thoroughly preparing specific construction sections and construction works.

(B) Determination

1) Whether a collaborative act restricts competition under Article 19(1) of the Fair Trade Act ought to be determined individually by examining whether the collaborative act causes or is likely to cause impacts on the determination of price, quantity, quality, and other transaction terms and conditions, by taking into account various circumstances, such as the characteristics of the relevant product, consumers’ standards for choosing products, and the impact of the relevant act on the market and enterprisers (see, e.g., Supreme Court Decision 2012Du1773, Nov. 28, 2013).

2) In full view of the following circumstances revealed through the facts acknowledged earlier, it is determined that the instant collaborative act restricted transactions of goods and services by allocating the construction volume of the instant project within the fourth River. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

A) In promoting the instant fourth lecture project, the Government tried to secure the appropriate level of price and design through free competition among the construction companies by dividing the construction sections by stages, taking into account the scale of the project on July 7, 200, taking into account the scale of the project. Nevertheless, among the top 1 to 22 construction companies, the 19 companies including the Plaintiff, etc. agreed to divide the shares in the instant fourth lecture project (the market share of the said 19 companies including the Plaintiff, etc. exceeds 80%) and among them, eight companies, such as Hyundai Construction, etc. agreed to implement the construction sections, which are to be in charge of each of the instant fourth lecture projects based on the said share agreement, and subsequently awarded the successful bid of the construction sections they want. Accordingly, competition among the construction companies is restricted, and the intent of the bid itself was eliminated.

B) The mere fact as alleged by the Plaintiff cannot deny the restriction on competition of the instant collaborative act. In addition, in light of the size and characteristics of the instant four-party projects, it is recognized that there was a somewhat competitive element. However, it is difficult to deem that the instant four-party project itself was difficult to deem that the instant four-party project was performed.

C) The circumstance that the instant four major river project was carried out, unlike the instant major canal project, due to the change in the government’s policy, cannot be a reason to deny the establishment of the instant collaborative act itself.

D) There is insufficient evidence to acknowledge that the instant collaborative act reduces unnecessary expenses of construction companies or maximizes economic efficiency. Rather, the Plaintiff’s allegation of decrease in expenses is inconsistent with the legislative purpose of the Fair Trade Act to encourage creative business activities through fair and free competition and to protect consumers. Furthermore, the instant collaborative act that restricts competition cannot be justified solely on the ground that the instant collective act was conducted successfully.

(3) As to the contents of the corrective order

(A) Summary of the Plaintiff’s assertion

The agreement on the allotment of tools for the instant 4 major river project was reached between 8 major companies, including Hyundai Construction, and the Plaintiff did not have agreed on the allotment of tools with 8 major companies, including Hyundai Construction. Therefore, the instant disposition is unlawful.

(B) Determination

As seen earlier, 8 companies, such as Hyundai Construction, agreed to distribute 13 tools except for the 2 sections of Yeongsan River Project, among the 15 sections of the instant 4 sections of the 15 sections of the instant 4 sections, but the evidence submitted alone is insufficient to recognize that the Plaintiff participated in the agreement (i.e., the Defendant also includes an agreement on the grounds of disposition against the Plaintiff on the allocation of tools). Nevertheless, the Defendant prohibited the Plaintiff from an agreement with other construction companies on the “construction sections” subject to successful bid with the Plaintiff while rendering the instant disposition. As such, the part prohibiting the agreement on the “construction sections” among the instant disposition is unlawful because it is difficult to view that it constitutes a measure necessary for correcting the act of violation. Accordingly, the Plaintiff’s assertion is with merit to the extent that the Plaintiff seeks the revocation of the disposition on this part.

(4) As to whether or not the discretion has been abused or abused

(A) Summary of the Plaintiff’s assertion

The Plaintiff did not have the ability to participate independently in the tools bidding of the instant 4 major river project, and both of the results of the actual bidding. Considering these circumstances, the flag that the Defendant rendered the instant disposition to the Plaintiff constitutes a case where the Defendant deviates from and abused its discretionary power.

(B) Determination

As seen earlier, the instant collaborative act is an act of allocating the quantity in the bid market, and the effect of restricting competition is apparent, and 19 companies among top 1-22 construction companies with top 1-22 construction companies with the assessment value of the performance capacity in 2008 participated in the share agreement. In light of the gravity of such an act, the instant disposition cannot be deemed unlawful solely based on the circumstances alleged by the Plaintiff, as it deviates from or abused discretion, and there is no other evidence to acknowledge it otherwise. Accordingly, the Plaintiff’s assertion

3. Conclusion

Since the "construction tools" portion of the Disposition No. 1 of this case is unlawful, it is revoked, and the remainder of the plaintiff's claim is dismissed as it is without merit.

The presiding judge, leap division

Judges Noh Jeong-il

Judges Dok-woo

(i)Public-private partnership projects are traditionally constructed and operated with the government budget as private financing, and are operated by the private sector.

The project to resolve the shortage of government financial resources and to introduce the initiative and efficiency of the private sector in infrastructure;

means.

(ii) the fiscal project estimates, plans, financing, operation and management of the services that a government should provide through social infrastructure;

design and construction of a facility is a project in charge. In general, the design and construction of the facility shall be procured through a contract with the private enterprise.

shall be in charge of operation and management by the government or a public institution under its jurisdiction.

(iii)ton means the method in which the package work executor is in charge of both the design and the construction;