독점규제법상 부당한 공동행위 사건에 있어서 묵시적 합의의 입증과 추정 - 대법원 2014. 5. 29. 선고, 2011두23085 판결 -

Abstract

In this article, the author reviews the price fixing case of Hyundai Oilbank under the Korea competition law, the Monopoly Regulation and Fair Trade Act (hereinafter, 'MRFT Act'). The Korea Fair Trade Commission (hereinafter, 'KFTC') rendered corrective orders and imposed administrative fine against two Liquefied Petroleum Gas('LPG') importers and four oil refineries, collectively six respondents. They supplied LPG at the colluded prices. The respondents brought law suits to quash the KFTC's decision respectively and only one respondent, Hyundai Oilbank Corporation won the case. It is highly difficult to prove the agreement in cartel cases, especially for implied agreements. Unlike antitrust laws of the United States or European Union competition law, the MRFT　Act has the statutory presumption of agreement clause, the MRFT Act article 19 paragraph 5. This presumption clause ironically has helped neglect the significance of indirect or circumstantial evidences. In the meantime, the KTFC has been reluctant to utilize the presumption clause since the 2007 revision of the MRFT Act. Rather the KTFC　prefers to rely on de facto presumption, applying article 19 paragraph 1 of the Act. The KFTC　seems to feel more difficulty to prove 'reasonable probability' required by the revised provision. However, the presumption clause was originally enacted to alleviate the burden of proof on the part of the KFTC and it would be very useful if adequately applied. In Hyundai Oilbank v. KFTC, the Supreme Court did not acknowledge cartel agreement on the part of Hyundai Oilbank. However, in the author's view it would be appropriate to presume agreement about Hyundai Oilbank, considering the indirect circumstantial evidences presented to the Court. In striking contrast to Hyundai Oilbank decision, the Supreme Court(different divisions) acknowledged the collusion in the separate decisions for five other respondents, which were in similar circumstances. In fact six respondents including Hyundai Oilbank were rendered the KFTC's LPG decision collectively. However, the Court did not render a proper explanation for these conflicting judgements. If the KFTC had utilized the statutory presumption clause, article 19 paragraph 5 of the MRFT Act, the KFTC would have succeeded in proving the collusion concerning Hyundai Oilbank.