부당한 공동행위의 중단 및 종기, 소송의 대상 등의 문제(대법원 2015. 2. 12. 선고 2013두6169 판결의 쟁점)

Abstract

There are many cartel cases based on Article 19(prohibition of unfair collaborative acts clause) of the Monopoly Regulation and Fair Trade Act(Korean antitrust law). Among the cartel cases, the surcharge-related cases are raised very frequently. The supreme court’s recent decision analysed in this article is an important case with regard to the suspension of cartel, the termination of cartel and the object of a litigation. First, with regard to the suspension of cartel, this decision delivered that cartel could be suspended by competitive bidding in the bid rigging process(collaborative acts concerning bidding). The lower courts had different views on this matter. However, the supreme court said that cartel could be suspended in terms of competitive bidding during the continuing bid rigging period, based on specific facts. Second, with regard to the termination of cartel, this decision said that cartel could be terminated on the contracting day in the bid rigging. However, this decision is based on the unique facts of this case. In the general bid rigging cases, cartel is terminated on the bidding day rather than the contracting day. Third, with regard to the object of a litigation, this decision said that the object of a litigation should be the second disposition(reduced surcharge based on leniency) in the matter of surcharge reduction following voluntary reporting. However, this might be unnatural in the point that a plaintiff should challenge the first disposition on remedy and the second disposition on surcharge. In addition, this decision contradicts with the previous decisions of the supreme court seeing the object of a litigation as the first disposition(surcharge). There could be the more flexible alternative that a plaintiff can challenge not only the first disposition but also the second disposition in the case where a plaintiff could not challenge the first disposition due to the period of filing litigation based on article 54 of the Monopoly Regulation and Fair Trade Act.