「4개 라면 제조·판매 사업자의 부당한 공동행위에 대한 건」 판례 평석(대법원 2015.12.24. 선고 2013두25924 판결을 중심으로)

Abstract

In 2008, the Korea Fair Trade Korea(KFTC) investigated into the alleged about 10-year long price-fixing cartels by four Ramen manufactures. In 2012, the KFTC issued a cease and desist order and imposed huge amount of surcharges on the companies. The companies brought the case before Seoul High Court, which rejected it. They appealed to the Supreme Court, which reversed and remanded the case. There have been at least 6 times parallel increases in Ramen price over 10 years. Especially, the KFTC presented two formal in-person meetings between the defendants as well as hundreds of email communications between and among the defendants to prove the price-fixing agreement. The main issue in the case was whether agreement can be established or inferred from hearsay statements from leniency applicant or circumstantial evidences by presented by the KFTC. Sec. 19(1) of Monopoly Regulation and Fair Trade Act(MRFTA) prescribes that "[n]o enterpriser shall agree with other enterprisers by contract, agreement, resolution, or any other means, to jointly engage in an act falling under any of the following subparagraphs, which unfairly restricts competition or allow any other enterpriser to perform such unfair collaborative act" The Supreme Court ruled that the burden of proof is imposed on the KFTC and the evidences is not sufficient to prove the agreement. The Supreme Court ruled that hearsay statements from leniency applicant were not trustworthy and circumstantial such as several parallel acts or exchanges of clandestine information related to price increase is not sufficient to infer an agreement. In Korea, parallel acts or information exchanges are considered as circumstantial evidences which agreement can be inferred from. From the global perspective, I think that the Supreme Court was unduly strict in establishing or inferring an agreement in the case. In this case, there were many direct and circumstantial evidences like leniency application, parallel price increases or exchanges of price information through e-mail.