불공정거래행위에서의 관련매출액 산정

Abstract

Traditionally, collusion cases have been at the heart of the issues of relevant product definition and relevant revenue calculation under the Monopoly Regulation and Fair Trade Act (“MRFTA”). However, recently, there has an issue regarding how to calculate relevant revenues in other types of violations under the MRFTA, in particular, unfair trade practice or unfair support cases. Until now, in unfair trade practice cases, the Korea Fair Trade Commission (“KFTC”) frequently applied different standards in calculating relevant revenues for each type of conduct and in each case, instead of applying a consistent and clear standard. With such tendency, the KFTC imposed a surcharge of KRW 11,964,000,000 in the 2013 unfair trade practice case involving NamYang Dairy Products Co., Ltd. (“NamYang”), particularly on NamYang’s conduct of coercive sale. The surcharge amount was significant (for your reference, the KFTC imposed a surcharge of KRW 500 million on NamYang’s conduct of coercive extraction of benefits). In imposing such significant amount of surcharge, the KFTC calculated the relevant revenues based on the total sales of 26 products during the violation period from January 1, 2009 to April 30, 2013. Regarding this, the Seoul High Court accepted the plaintiff’s request and ruled that “In calculating the relevant revenues, the KFTC unlawfully failed to identify at least the authorized dealers, product names, volume, and period for such coercive sale, and included even parts that do not seem to fall under the scope of its coercive sale. Thereafter, the Supreme Court decided to dismiss the case without further review. After NamYang’s unfair trade practice case, there has been an increase in the number of cases where the courts cancel the surcharge imposed by the KFTC or the KFTC imposes a statutory surcharge. This is so because it is not simple to calculate relevant revenues that are directly or indirectly influenced by a conduct of most types of unfair trade practice, such as unreasonable customer inducement, coercive trading, imposition of detriment, managerial intervention, and trading conditioned on exclusivity. However, as an exception, if an unfair trade practice is related to execution of a specific agreement, the relevant revenue is the contract amount. Nonetheless, such case raises an issue of fairness with other unfair trade practice cases where a statutory surcharge is imposed. Given the above situation, it is necessary to establish a clearer fundamental principle regarding the calculation of relevant revenues in unfair trade practice cases, and it appears that the surcharge imposition standard provided by Article 19 of the Enforcement Decree of the Fair Agency Transactions Act could serve as a standard. However, even if the standard is used, more precedents should accumulate in order to furnish a more substantial and specific standard. Hence, even the KFTC needs to put every effort in calculating the relevant revenue directly or indirectly influenced by a violation in each case, rather than simply imposing a statutory surcharge.