Shee Construction (Attorney Park Jong-chul, Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm World, Attorneys O Jin-hwan, Counsel for defendant-appellant)

September 22, 2011

1. With respect to the penalty surcharge reduced by the Defendant on December 30, 2010 in the case No. 2010-173 of the plenary session resolution of December 30, 2010, the portion exceeding KRW 294,000,000, out of the penalty surcharge of Bondong-dong-dong-dong-dong-dong-dong-si 1 Section, exceeds KRW 352,000,000, out of the penalty surcharge of 221,000,000, out of the penalty surcharge of 221,00,000, out of the penalty surcharge of 5 Section 5 Section case, the portion exceeding KRW 240,00,000 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Ten minutes of the lawsuit shall be borne by the plaintiff and the remainder by the defendant.

The decision that the Defendant’s decision to reduce the attached penalty surcharge imposed on the Plaintiff in the case of No. 2010-173 of the plenary session Resolution on December 30, 2010 is revoked.

1. Details of the disposition;

A. The plaintiff was investigated by the defendant with respect to the attached Form 9 Section 1, Section 9, Section 1, Section 1, Section 16, Section 2, Section 2, Section 5, Section 5, Section 1, Section 1, Section 8, Section 8, etc., of the Jeonnam-si, which he participated in, and the above case's agenda was presented to the defendant. In relation to the pertinent collaborative act on December 25, 2009 and the corresponding case's agenda items were presented to the defendant. In relation to the pertinent collaborative act, on December 28, 2009, the plaintiff submitted to the defendant for reduction and exemption under Article 5, Section 202, Section 202, which is an individual person who is separate from the pertinent collaborative act (hereinafter referred to as "1-report project") and Section 5, which is related to the pertinent collaborative act.

B. The Defendant determined that one of the Plaintiff’s applications for reduction or exemption is the first voluntary reporter under the Fair Trade Act with respect to one of the projects filing the application for reduction or exemption, and that one is in the position of an investigating partner with respect to the business filing the application for reduction or exemption, and satisfies the requirements for reduction or exemption of penalty surcharges under the Fair Trade Act, and that the penalty surcharges are as indicated in the table of “the details of final imposition of penalty surcharges” pursuant to Article 16(2) of the “Public Notice on Operation of the System for Reduction or Exemption” (hereinafter “Public Notice on Reduction or Exemption”), and that corrective measures have not been mitigated. In determining the reduction rate, the Defendant determined the reduction rate as follows: (a) the sum of the sales related to the seven of the relevant collaborative acts (34,589,000 won) and the sales related to two other collaborative acts (171,534,59,000 won = 92,59,000 won (1-reported business) and then, determined the reduction or exemption rate of penalty surcharges for less than 20% (20%).

[Attachment 2,018 - 2,073 - 47 - 47 - 27 - 47 - 27 - 47 - 27 - 47 - 27 - 47 - 47 - 27 - 47 - 16 - 47 - 27 - 47 - 47 - 27 - 47 - 16 - 47 - 47 - 27 - 47 - 47 - 27 - 47 , 47 , 47 - 5 27 - 47 - 27 - 47 , 57 - 47 5 - 27 5 ,47 5 - 27 5 ,67 - 47 ,47 5 -47 ,65 -47 5 -47 .

[Grounds for Recognition] Unsatisfy, entry of Gap evidence 1, 2, and 3 (including virtual numbers), the purpose of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, when setting the reduction rate according to the additional reduction and exemption system and comparing the relevant sales amount of each collaborative act with those of the respective different collaborative acts voluntarily reported, set the reduction rate individually, and applied it repeatedly. However, the Defendant determined the reduction rate by comparing the total sales amount of the pertinent collaborative act and the total sales amount of the other collaborative acts with the total sales amount related to the pertinent collaborative act. The Defendant asserts that the instant disposition is unlawful since it is unfair in the following sense:

1) In determining the scale of the collaborative act in question, the Fair Trade Act regulates the bidding collusion as a separate type of unfair collaborative act, the public notice of penalty surcharge provides that the sales related to the bidding collusion shall be determined as the contract price or the successful bid price, and the defendant, as long as the defendant imposed the penalty surcharge in question on the seven separate cases, dealing with each of the relevant collaborative acts in the application of mitigation rate, is unreasonable, and since the imposition of penalty surcharge is imposed on each of the cases, the pertinent collaborative act subject to comparison should be calculated by case. In light of the above, the pertinent collaborative act in question constitutes one collaborative act by bidding, and therefore, the reduction rate should be calculated separately from other collaborative acts by bidding.

2) In determining the scale of other collaborative acts, if a voluntary report is not made to only some of the collaborative acts in consideration of their degree of reduction or exemption, the person subject to the voluntary report will be unable to achieve the original purpose of the additional reduction or exemption system that intends to facilitate the detection of the collaborative act by granting additional reduction or exemption to those who have filed a voluntary report, etc., and the additional reduction or exemption system is a system established on the premise that the system itself provides overlapping benefits and is more effective due to voluntary report than the risk of abuse. In light of the fact that the additional reduction or exemption system is a system established on the premise that the system itself provides overlapping benefits, the reduction rate should be calculated by comparing it by individual cases of other collaborative acts reported.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

1) Purport of the additional reduction and exemption system

The purpose of the so-called “MNS” system under the Fair Trade Act is to provide evidence of other collaborative acts even if the first person is not a reporter of the relevant collaborative act, not only reduce or exempt the other collaborative act, but also promote the chain effect of the collaborative act by granting additional reduction or exemption to the other collaborative act. However, for the purpose of reducing the possibility of abuse, such as the possibility of the confession of minor collaborative acts involved in the relevant collaborative act to obtain additional reduction or exemption, the method of comparing the illegality degree of the relevant collaborative act with the other collaborative act, i.e., determining the specific mitigation rate through the public notice of reduction or exemption, is to separately determine the degree of additional reduction or exemption of the relevant collaborative act in proportion to the sales amount related to the other collaborative act.

2) Criteria for judgment

A) The legal nature and role of the notice of reduction and exemption

In general, the criteria for classifying administrative rules and regulations are the forms of norms, whether superior laws are authorized, and whether there exists legal nature in the contents of norms. The public notice of reduction or exemption is made in the form of public notice. ② The detailed procedures for the reduction or exemption system for voluntary reporters, etc., and the specific extent and criteria for the reduction or exemption of penalty surcharges pursuant to the delegation of Article 22-2(3) of the Fair Trade Act and Article 35(4) of the Enforcement Decree of the Fair Trade Act. In other words, it is determined to determine which degree of penalty surcharges are reduced or exempted for voluntary reporters, etc. under the Fair Trade Act, and it cannot be said that the contents of new restrictions on rights or obligations are imposed. Accordingly, the public notice of reduction or exemption is merely a provision of administrative rules inside the Defendant, and it is not effective externally to the public or the court, and whether the decision of reduction or exemption is legitimate should be determined in accordance with the contents and purport of the relevant statutes as well as the above criteria for disposition (see, e.g., Supreme Court Decision 2007Du694

However, even though the notice of reduction and exemption is merely an internal administrative work rule within an administrative agency having no legal effect, it is not reasonable and reasonable to set the criteria for reduction and exemption of penalty surcharges by comparing the illegality level of the collaborative act in question and other collaborative acts in question in this case, and it cannot be said that it itself is not a reasonable and reasonable provision. As long as the administrative agency has decided to reduce penalty surcharges on the basis of such decision, if it violates it without any special reason, it shall be illegal

B) Reduction Criteria

Article 35(1)4 of the Enforcement Decree of the Fair Trade Act provides that "where a person who is subject to a penalty surcharge or corrective measure due to an unfair collaborative act satisfies the requirements of a voluntary reporter or investigative partner with respect to "other unfair collaborative act" related to him/her, the penalty surcharge shall be reduced or exempted again for such unfair collaborative act." The language and text of the Enforcement Decree of the Fair Trade Act and the Fair Trade Act separately stipulate bidding collusion in the form of unfair collaborative act (Article 19(1)8 of the Fair Trade Act). In calculating the related sales that form the basis for the imposition of a penalty surcharge, in the case of bidding collusion agreement, the contract amount is determined as related sales (proviso of Article 9(1) of the Enforcement Decree of the Fair Trade Act), and the defendant calculated and imposed a penalty surcharge for each bidding collusion in this case, both the "unfair collaborative act" and "other unfair collaborative act" under the Enforcement Decree are premised on the individual collaborative act in each case, and thus, it shall be deemed that the additional bidding agreement related to the reduction or exemption of sales amount should be determined separately from the bidding agreement.

However, in calculating the mitigation rate, in the case of the person who has filed an application for additional reduction or exemption, it is reasonable to determine the most favorable reduction rate for the applicant by applying the reduction rate to 20% in principle pursuant to the main sentence of Article 16 (2) of the Public Notice of Reduction or Exemption, but in applying the proviso, it is reasonable to determine one of the most favorable reduction rates for the applicant by applying the reduction rate to the other simple reduction rate in applying the reduction rate to the other simple reduction rate in applying the proviso. In this case, if several different applicants have filed several different proposals, it is eventually possible to reduce reduction due to the most severe reduction rate, and if it is possible to continue to reduce it without any restriction, compared to those who have filed the report of other collaborative acts, and if it is possible to reduce it in comparison with those who have filed the report of the other collaborative acts, it can be balanced in order to realize the purpose of detecting the additional reduction or exemption rate through the additional reduction or exemption system and to realize the punitive effect of the additional reduction or exemption system.

3) Determination

If the penalty surcharge is calculated by applying the reasonable reduction rate after comparing 7 cases of the collaborative act and 2 cases of the other collaborative act according to the criteria mentioned above, the reduction rate pursuant to the public notice of reduction or exemption is determined again by comparing the two, it shall be as listed in the following table:

1) 1 reported projects (92,59) 2 reported projects (78,99) contained in the main sentence of this paragraph (78,93) 30 per cent 30 per cent 564 (807 x 07.6) 484(807 x 0.6), 30 per cent 40 per cent 294 (42,137) 352(588 x 680.6) 16, 307, 308 (78, 187) x 167) x 670 per cent 67, 207 x 307 x 63636 per cent (636.6 per cent) x 47) x 70 per cent (1,012 x 607 x 607) x 3636 per cent636 per cent 636(6) of Incheon (4636).7

The Defendant’s imposition of the instant imposition penalty surcharge is more favorable to the Plaintiff, and it cannot be deemed unlawful in the instant case where the Plaintiff contests the deviation or abuse of the Defendant’s discretionary authority, but where the instant imposition penalty surcharge is more higher than the appropriate imposition penalty surcharge, the excess is contrary to the principle of equality, and thus, there is an error of deviation or abuse of discretionary authority.

Therefore, among the disposition of this case, the part of the disposition of this case falling under the scope of 58,00,000 won exceeding 294,000,000 won out of the penalty surcharge of 352,000,000 won (294,000 won - 294,000 won) among the penalty surcharge of 37,00,000,000 won out of the penalty surcharge of 221,00,000 won in the disposition of this case in the case of Bohdong-dong District 1, the disposition of this case, and the part of the penalty surcharge of 240,00,000,000 won out of the penalty surcharge of 352,00,000 won in the case of Boju-dong District 1,000,000 won (240,000 won) shall be revoked within the scope of other grounds for appeal. Thus, the plaintiff's assertion of this premise shall be revoked within the other grounds for appeal.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remainder is without merit, and it is dismissed. It is so decided as per Disposition.

[Attachment-Related Acts and subordinate statutes omitted]

Judges Yan Jung-hun (Presiding Judge)