When the extended surcharge limitation period applies

1. 01Question

   Does the amended Article 49(4) of the Monopoly Regulation and Fair Trade Act, which extends the limitation period for a corrective order or a surcharge, apply to a case first investigated after 22 June 2012 although the violation ended earlier, without offending the constitutional principle against retroactive legislation, and how is the date on which the implementing act of a bid-rigging agreement ended determined?

2. 02Holding

   It applies, and the extension does not offend the principle against retroactive legislation. Where the former five-year period running from the end of the violation had not expired when the current Act took effect on 22 June 2012, the amended Article 49(4) governs a case the Commission investigates for the first time after that date: seven years run from the end of the violation and, once the investigation opens, five years from the opening. Applying the longer period targets a factual and legal relationship still in progress, so it is a non-genuine retroactive application, and the fact that the Commission had not yet opened an investigation does not justify restricting the amendment under the principle of protection of legitimate trust. A cartel ends on the date its implementing act ends, and for bid rigging that date is judged case by case and on the concrete facts, weighing the content of the agreement, the concrete scope and form of the planned acts and the certain arising of the restrictive effect.

   Points at issue, verbatim

   독점규제 및 공정거래에 관한 법률 제19조 제1항 제1호에서 정한 가격 결정 등의 합의 및 그에 기한 실행행위가 있었던 경우, 부당한 공동행위가 종료된 날(=실행행위가 종료된 날) 및 이러한 법리가 같은 항 제8호에서 정한 낙찰자, 경락자, 투찰가격 등의 결정에 관한 입찰담합 및 그에 기한 실행행위가 있었던 경우에도 그대로 적용되는지 여부(적극)

   Unofficial English translation

   Where there has been an agreement on price determination, etc. as provided in Article 19 (1) 1 of the Monopoly Regulation and Fair Trade Act and an implementing act based thereon, whether the day on which the unfair concerted practice ended (= the day on which the implementing act ended) and whether such legal principle applies equally where there has been bid rigging relating to the determination of the successful bidder, the highest bidder at auction, bid prices, etc. as provided in subparagraph 8 of the same paragraph and an implementing act based thereon (affirmative)

3. 03Disposition

   Partly reversed and remanded Stated in the decision

   원심판결 중 피고 패소 부분을 파기하고, 이 부분 사건을 서울고등법원에 환송한다.

   Unofficial English translation

   The part of the judgment of the court below in which the defendant lost is reversed, and this part of the case is remanded to the Seoul High Court.

4. 04Form of the test

   Elements stated Stated in the decision

   현행법 시행(2012. 6. 22.) 당시 구법 제49조 제4항의 ‘위반행위가 종료한 날부터 5년’의 처분시효가 경과하지 않은 이상, 처분 당시의 법령인 현행법 제49조 제4항이 적용된다.

   Unofficial English translation

   Provided that the limitation period for dispositions of "5 years from the day on which the violation ended" under Article 49 (4) of the former Act had not elapsed as of the time the current Act came into force (June 22, 2012), Article 49 (4) of the current Act, which is the law in force at the time of the disposition, applies.

5. 05Factors

   • 부당한 공동행위가 종료된 날(=실행행위가 종료된 날)
   • 입찰담합에 기한 실행행위가 종료되었는지 판단하는 방법
   • 부칙(2012. 3. 21.) 제3조에 따라 구법보다 처분시효를 연장한 현행법 제49조 제4항을 적용하는 것이 헌법상 법률불소급의 원칙에 반하는지 여부(소극)
   • 이 경우 신뢰보호원칙에 따라 예외적으로 현행법 제49조 제4항의 적용이 제한되어야 하는지 여부(소극)

   Unofficial English translation

   • the day on which the unfair concerted practice ended (= the day on which the implementing act ended)

   • the method of determining whether the implementing act based on bid rigging has ended

   • whether applying Article 49 (4) of the current Act, which extends the limitation period for dispositions beyond that of the former Act pursuant to Article 3 of the Supplementary Provisions (March 21, 2012), violates the principle of non-retroactivity of statutes under the Constitution (negative)

   • whether in such a case the application of Article 49 (4) of the current Act must exceptionally be restricted in reliance on the principle of protection of trust (negative)

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2006. 3. 24. 선고 2004두11275 판결(공2006상, 728)

   Unofficial English translation

   Supreme Court Decision 2004Du11275 decided March 24, 2006 (Gong 2006 Sang, 728)

   Decisions referred to

   [1] 대법원 2006. 3. 24. 선고 2004두11275 판결(공2006상, 728), 대법원 2015. 5. 28. 선고 2015두37396 판결(공2015하, 890) / [2] 대법원 2019. 2. 14. 선고 2017두68103 판결, 헌법재판소 2019. 11. 28. 선고 2016헌바459, 2017헌바31, 236, 2018헌바193, 2019헌바248 전원재판부 결정(헌공278, 1217)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Does the same reasoning extend to the limitation period under Article 49(4) as amended by Law No. 17290 of 19 May 2020, where the violation ended before that amendment took effect on 20 May 2021?

   The remand judgment of the Seoul High Court, once it applies the periods to the surcharge order after the investigation opened on 22 June 2016, would show how the rule works in practice. A later decision applying Article 49(4) as amended by Law No. 17290 of 19 May 2020, or a Constitutional Court decision on the same supplementary provision, would call for this entry to be read again.

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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