정보교환행위의 합의성립여부 - 대법원 2015. 12. 24. 선고 2013두25924 판결을 중심으로 -

Abstract

Four instant noodle manufacturer (Nongshim, Samyang Food, Ottogi and Korea Yakult) jointly increased prices of instant noodles through information exchanges on six occasions from the time when the prices rose during May to July 2001 until the prices decreased in February 2010. In particular, they fixed the wholesale prices and suggested retail prices of main products at the same level. Nongshim, who played a leading role in raising the prices of instant noodle, formulated a plan to increase prices and then informed other companies of the price increase. Other companies also raised the prices of instant noodle at the same or similar level according to the plan. The largest company in the market encouraged other companies to raise prices by providing information on the price increase, becoming aware that other companies would follow its price increase (“conscious parallelism”). In particular, they held regular general meetings and management meetings of the Instant Noodle Manufacturer Association in late March each year to facilitate continued exchanges and cooperation between rival companies. The Korea Fair Trade Commission (KFTC) issued a corrective order to, and imposed penalty surcharges of 136.2 billion won (Nongshim 108 billion won, Samyang Food 12 billion won, Ottogi 9.8 billion won and Korea Yakult 6.3 billion won) under Article 19 (1) 1 of the Monopoly Regulation and Fair Trade Act (price fixing : for fix, maintain, or alter prices). Samyang Food voluntarily reported the price fixing to the KFTC, so it was exempted from punishment(“leniency program”). In protest of the penalty, Nongshim filed the lawsuit, saying the testimony from Samyang executives lacked credibility and there was no objective evidence. Nongshim said it had no reason to fix prices with the other companies because it is the market leader. But the Seoul High Court determined what they were doing was price-fixing, saying when Nongshim made an internal decision on price hikes, Ottogi immediately decided to hike its prices at the same price as Nongshim’s, and this was possible only through prior agreement between the companies (Seoul High Court, Decision No. 2012Nu24353 rendered on November 8, 2013). Nevertheless, the Supreme Court based its decision on the premise that information exchange alone fails to establish an unfair collaborative act even if it may serve as reliable information for establishing the meeting of the minds among companies and reversed and remanded the Seoul High Court’s decision on the following grounds: (i) a hearsay statement on the contents of the companies’ meeting is not accurate, (ii) the enterprisers’ behavior appears incompatible with the notion of an agreement, (iii) it is unclear whether external conformity of conduct exists and (iv) the evidence offered by the KFTC alone does not establish the meeting of the minds among companies (Supreme Court, Decision No. 2013Du26309 rendered on January 14, 2016). The Supreme Court should have determined that such information exchange constituted an illegal cartel based on the consideration of various circumstantial evidence, such as, among others, the type and frequency of information exchanged, method for implementing a price increase, and similar price increases.