Open Decision Ledger · Competition & fair trade
Sub-contractor contract amount in the surcharge base for bid rigging
Supreme Court, Jan. 31, 2019, 2017Du48208 (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
In a tender for natural gas trunk pipeline construction let as a joint contract under the principal contractor management method, was the Korea Fair Trade Commission right to take the joint venture's whole contract amount, including the sub-contractor's portion, as the base for the surcharge on Company A, which took part as a cover bidder?
Holding
The appeal was dismissed. The Supreme Court found no error in the appellate reading that the collusion was directed at the whole bid amount, that the owner decided award on that whole amount, and that absent special circumstances the competitive restriction reached the sub-contractor's portion included in it. It also accepted the limitation ruling that the case was first investigated after the amended Article 49(4) of the Monopoly Regulation and Fair Trade Act came into force on 22 June 2012, so that amended provision applied to the case.
Points at issue, verbatim
갑 회사 등이 위 입찰에 관하여 낙찰자 및 투찰률을 결정하는 합의를 하는 등 공동행위를 하였다는 이유로 공정거래위원회가 부계약자 계약금액 부분이 포함된 공동수급체의 계약금액 전체를 갑 회사에 대한 과징금 산정의 기준으로 삼아 과징금 납부명령 등을 한 사안에서, 공정거래위원회의 조치가 위법하지 않다고 본 원심판단을 수긍한 사례
Unofficial English translation
In a case where, on the ground that Company A and others had engaged in a concerted practice in connection with the above bid, including entering into an agreement determining the successful bidder and the bid rate, the Fair Trade Commission imposed an order to pay an administrative fine, etc., taking the entire contract amount of the joint contractor, including the portion of the contract amount of the subcontractor, as the basis for calculating the administrative fine against Company A, a case in which the holding of the court below, to the effect that the Fair Trade Commission's measures were not unlawful, is affirmed
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
Existing test applied Read from the decision
원심의 이러한 판단에 상고이유 주장과 같이 과징금의 기본산정기준 등에 관한 법리를 오해한 위법이 없다.
Unofficial English translation
In the court below's determination as above, there is no error in the legal principle concerning the basic calculation criteria for administrative fines and the like, as asserted in the grounds for final appeal.
Factors
- 위 입찰에 들러리로 참가하였는데
- 낙찰자 및 투찰률을 결정하는 합의를 하는 등 공동행위를 하였다는 이유로
- 부계약자 계약금액 부분이 포함된 공동수급체의 계약금액 전체를 갑 회사에 대한 과징금 산정의 기준으로 삼아
- 공정거래위원회의 조치가 위법하지 않다고 본 원심판단을 수긍한 사례
Unofficial English translation
• having participated in the above bid as a stand-in bidder, and
• on the ground that a concerted practice was engaged in, including entering into an agreement determining the successful bidder and the bid rate,
• taking the entire contract amount of the joint contractor, including the portion of the contract amount of the subcontractor, as the basis for calculating the administrative fine against Company A,
• a case in which the holding of the court below, to the effect that the Fair Trade Commission's measures were not unlawful, is affirmed
Relation to precedent
Cannot be determined Not in the decision
Decisions referred to
해당 본문 참조
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where special circumstances are shown, how is it decided that the competitive restriction did not reach the sub-contractor's contract amount in a joint contract under the principal contractor management method?
A decision of the Korea Fair Trade Commission or a court that sets the applicable rate by reference only to the principal contractor's own portion would call for this entry to be read again. The same applies to an amendment of Article 9(1) of the Enforcement Decree or Article 22 of the Act on how bid rigging is measured.
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 May 2017 (2016Nu119), held that the joint venture's contract amount including the sub-contractor's portion could serve as the base for the surcharge on Company A. The businesses colluded over the whole bid amount and Korea Gas Corporation decided award on that whole amount, so absent special circumstances the competitive restriction reached the sub-contractor's portion; the surcharge also serves a sanctioning purpose, so the fact that the portion was not Company A's own sales was not by itself a ground to exclude it; and the joint venture has the nature of a civil law partnership whose members are jointly liable, so the principal contractor has an interest in the whole contract amount. On the limitation period, it held that the letter of 16 October 2009 was only an inquiry from Korea Gas Corporation and that no investigation took place before the site inspection of 7 October 2013, so the case was first investigated after 22 June 2012.
Supreme Court standard: The Supreme Court found no error in either ruling. On the limitation period, the court below had not misapplied or overlooked the law on reporting and investigation under the Monopoly Regulation and Fair Trade Act. On the surcharge, the reasoning on Article 22 and Article 55-3(1) and (5) of that Act and Article 9(1) of its Enforcement Decree, together with the finding that the collusion pre-agreed the awardee and bid rates in a public tender and plainly restricted competition, disclosed no misapplication of law on the base calculation or on abuse of discretion, and no failure to examine what was needed. The Justices unanimously dismissed the appeal and put the costs on Company A.
Distinguishing conditions
- A collusion that was not directed at the whole bid amount, or a tender in which the owner decided award by separating out and assessing the sub-contractor's portion on its own.
- A case in which special circumstances show that the competitive restriction did not reach the sub-contractor's contract amount, which the appellate court treated as the exception to its rule.
- A violation first investigated before 22 June 2012, since by the supplementary provision the amended Article 49(4) does not apply to it.
Record verification notes
Fix the investigation date first: the letter of 16 October 2009 did not start the period, and the site inspection of 7 October 2013 was treated as within an investigation opened after the amended Act took effect. Then confirm that the tender turned on the whole bid amount and that the sub-contractor's part was not separately assessed, and check how the applicable rate was set, since the Court left that discretion undisturbed.
From the official text
Points at issue
주계약자 관리방식에 의한 공동계약으로 발주된 천연가스 주배관 건설공사 공구 입찰에서 갑 주식회사가 위 입찰에 들러리로 참가하였는데, 갑 회사 등이 위 입찰에 관하여 낙찰자 및 투찰률을 결정하는 합의를 하는 등 공동행위를 하였다는 이유로 공정거래위원회가 부계약자 계약금액 부분이 포함된 공동수급체의 계약금액 전체를 갑 회사에 대한 과징금 산정의 기준으로 삼아 과징금 납부명령 등을 한 사안에서, 공정거래위원회의 조치가 위법하지 않다고 본 원심판단을 수긍한 사례
Unofficial English translation
In a case where, in a bid for a section of a natural gas main pipeline construction project ordered under a joint contract using the main contractor management method, Company A participated in the above bid as a stand-in bidder, and the Fair Trade Commission, on the ground that Company A and others had engaged in a concerted practice in connection with the above bid, including entering into an agreement determining the successful bidder and the bid rate, imposed an order to pay an administrative fine, etc., taking the entire contract amount of the joint contractor, including the portion of the contract amount of the subcontractor, as the basis for calculating the administrative fine against Company A, a case in which the holding of the court below, to the effect that the Fair Trade Commission's measures were not unlawful, is affirmed
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
독점규제 및 공정거래에 관한 법률 제22조, 제55조의3 제1항, 제5항, 독점규제 및 공정거래에 관한 법률 시행령 제9조 제1항
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.
Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.
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