Open Decision Ledger · Competition & fair trade
KFTC surcharge notice on obstruction as a discretionary standard
Supreme Court, Nov. 26, 2020, 2017Du36083 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 과징금납부명령취소
Official text on the National Law Information Center
Question
Does Part IV, 3, Na, (4) of the former Notice on Detailed Criteria for Imposing Surcharges, allowing a surcharge increase where the violating business or its officers or employees refuse, obstruct or avoid the investigation, have a legal basis, what is its legal character, and must it be respected as far as possible?
Holding
Yes. The Court held that Article 55-3(1) and (5) of the former Monopoly Regulation and Fair Trade Act and Article 61 of its Enforcement Decree state the grounds to be considered comprehensively and indicatively and delegate the concrete considerations and detailed criteria to the KFTC's notice, so the notice provision rests on that delegation. It is an internal office-handling rule of the authority, a discretionary standard, which must be respected as far as possible unless its criterion is inconsistent with the Constitution or statutes, or cannot be regarded as objectively reasonable and so is an abuse of discretion. The appeal was dismissed.
Points at issue, verbatim
‘위반사업자 또는 그 소속 임원·종업원이 위반행위 조사를 거부·방해 또는 기피한 경우’ 과징금을 가중할 수 있도록 규정한 구 과징금부과 세부기준 등에 관한 고시 Ⅳ. 3. 나. (4)항의 법적 근거 및 법적 성질(=재량준칙) / 위 고시조항이 가급적 존중되어야 하는지 여부(적극)
Unofficial English translation
The legal basis and legal nature (=discretion guidelines) of Article IV. 3. (b) (4) of the former Notice on Detailed Standards for Imposition of Administrative Fines, etc., which provides that the administrative fine may be increased 'where a violating business operator or its officers or employees refuse, obstruct, or avoid an investigation of the violating act' / Whether the above provision of the Notice should be respected as much as possible (affirmative)
Disposition
Dismissed Stated in the decision
상고를 기각한다. 상고비용은 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The plaintiff shall bear the costs of the final appeal.
Form of the test
Elements stated Stated in the decision
이러한 재량준칙은 그 기준이 헌법 또는 법률에 합치되지 않거나 객관적으로 합리적이라고 볼 수 없어 재량권을 남용한 것이라고 인정되지 않는 이상 가능한 한 존중되어야 한다
Unofficial English translation
Such discretion guidelines must be respected as much as possible, unless it is recognized that their standards do not conform to the Constitution or statutes, or cannot be regarded as objectively reasonable and thus constitute an abuse of discretion
Factors
- ‘위반사업자 또는 그 소속 임원·종업원이 위반행위 조사를 거부·방해 또는 기피한 경우’ 과징금을 가중할 수 있도록 규정한 구 과징금부과 세부기준 등에 관한 고시 Ⅳ. 3. 나. (4)항의 법적 근거 및 법적 성질(=재량준칙)
- 위 고시조항이 가급적 존중되어야 하는지 여부(적극)
Unofficial English translation
• The legal basis and legal nature (=discretion guidelines) of Article IV. 3. (b) (4) of the former Notice on Detailed Standards for Imposition of Administrative Fines, etc., which provides that the administrative fine may be increased 'where a violating business operator or its officers or employees refuse, obstruct, or avoid an investigation of the violating act'
• Whether the above provision of the Notice should be respected as much as possible (affirmative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2017. 1. 12. 선고 2016두35199 판결(공2017상, 385)
Unofficial English translation
Supreme Court Decision 2016Du35199 decided January 12, 2017 (Gong 2017 Sang, 385)
Decisions referred to
대법원 2017. 1. 12. 선고 2016두35199 판결(공2017상, 385)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What would show that the notice criterion allowing a surcharge increase for refusal, obstruction or avoidance of an investigation is objectively unreasonable or inconsistent with the Constitution or statutes?
A later decision refusing to respect a KFTC notice criterion, or treating senior executive involvement as needing its own basis in the notice, would reopen this entry. So would an amendment to Article 55-3 of the Act, Article 61 and its Attached Table 2 of the Enforcement Decree, or the KFTC's notice on detailed criteria for imposing surcharges.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, in its judgment of 12 January 2017 (2016Nu53182), upheld the surcharge order in full. It held that the volume-exchange part counted as relevant sales, because the exchanged volumes sat inside the shipments on which the six cement makers' market-share agreement was based, the agreed price applied to them and the plaintiff had booked them as sales, and that freight in delivered-price transactions also counted, since the agreement covered freight, the plaintiff booked prices including freight and no trade custom had demanders bearing the transport cost. It further held that the notice provision had its basis in the delegation rather than breaching the principle of reservation of law, that no result of obstruction was needed, and that the plaintiff had not made out leniency for cooperation.
Supreme Court standard: The Supreme Court found no error on any of the five grounds. It held that the Act and its Decree regulate the grounds to be considered comprehensively and indicatively while delegating the detailed criteria to the notice, that the notice provision is a discretionary standard to be respected as far as possible unless contrary to the Constitution or statutes or objectively unreasonable, and that the court below had not misapprehended the law on the legal basis for the increase, the elements of obstruction, senior executive involvement, leniency or the final calculation. The Justices unanimously dismissed the appeal and placed the costs on the plaintiff.
Distinguishing conditions
- A case in which the notice criterion is inconsistent with the Constitution or statutes, or cannot be regarded as objectively reasonable, since only then may the discretionary standard go unrespected.
- A volume exchange outside the shipment figures on which the market-share agreement was based, or not booked as a sale, so that it falls outside relevant sales as the court below reasoned.
- A delivered-price transaction in a market where a trade custom has the demander bear the transport cost itself, since the court below relied on the absence of such a custom.
Record verification notes
Check which version of the Act, its Decree and the KFTC's notice was in force, since the Court applied the Act before the amendment of 18 April 2017, the Decree before 8 March 2016 and the notice before 5 June 2013. Then set the facts said to show refusal, obstruction or avoidance against the notice provision, which requires no actual result of obstruction, and keep the sufficiency of the KFTC's reasons for the increase as a separate question.
From the official text
Points at issue
‘위반사업자 또는 그 소속 임원·종업원이 위반행위 조사를 거부·방해 또는 기피한 경우’ 과징금을 가중할 수 있도록 규정한 구 과징금부과 세부기준 등에 관한 고시 Ⅳ. 3. 나. (4)항의 법적 근거 및 법적 성질(=재량준칙) / 위 고시조항이 가급적 존중되어야 하는지 여부(적극)
Unofficial English translation
The legal basis and legal nature (=discretion guidelines) of Article IV. 3. (b) (4) of the former Notice on Detailed Standards for Imposition of Administrative Fines, etc., which provides that the administrative fine may be increased 'where a violating business operator or its officers or employees refuse, obstruct, or avoid an investigation of the violating act' / Whether the above provision of the Notice should be respected as much as possible (affirmative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
상고를 기각한다. 상고비용은 원고가 부담한다.
Unofficial English translation
The appeal is dismissed. The plaintiff shall bear the costs of the final appeal.
Provisions referred to
구 독점규제 및 공정거래에 관한 법률(2017. 4. 18. 법률 제14813호로 개정되기 전의 것) 제55조의3 제1항, 제5항, 구 독점규제 및 공정거래에 관한 법률 시행령(2016. 3. 8. 대통령령 제27034호로 개정되기 전의 것) 제61조 제1항 [별표 2] 제2호 (다)목, 제3항
Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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