[2] The case reversing the judgment of the court below that the act of refusing to approve the transfer of agency's position does not constitute an act of abuse of the enterpriser's superior position on the ground that the manufacturer or seller of milk products does not constitute an act of abuse of the enterpriser's superior position for the exclusive agency's business owner on the ground that the agent's one-time visit to the factory for two days, the failure to visit the factory,

[2] The case reversing the judgment of the court below that the act of refusing to approve the transfer of agency's position does not constitute an act of abuse of the enterpriser's superior position on the ground that the manufacturer or seller of milk products does not constitute an act of abuse of the enterpriser's superior position for the exclusive agency's business owner on the ground that the agent's one-time visit to the factory for two days, failure to deliver to some consumers, etc

1. According to the reasoning of the judgment below, since it is difficult for the plaintiff company to enter into an agency contract with its exclusive agent under the Monopoly Regulation and Fair Trade Act (amended by Act No. 5235, Dec. 30, 1996; hereinafter referred to as the "Act"), the court below decided that the plaintiff company's agency's sales right of the plaintiff company was inappropriate for the plaintiff company's 93,000,000 won since it was hard for the plaintiff company to enter into an agency contract with its independent agent under the premise that it was unfair for the plaintiff company's 1 to refuse to sell its sales since it was hard for the plaintiff company to enter into an agency contract with its independent agent under the premise that it was unfair for the plaintiff company's 1 to withdraw its sales right of the plaintiff company's sales right of the plaintiff company's 93,00,000 won from its previous agent's sales right of the plaintiff company's sales right of the 195,000,000 won after the expiration of the contract period.

2. However, the Fair Trade Commission's notice of July 8, 1995 pursuant to Article 23 (1) 4 and (2) of the Act and subparagraph 4 of Article 6 of the Fair Trade Commission's notice of July 8, 1995 (hereinafter "the notice of this case") provides for an abuse of enterpriser's superior position as a type of unfair trade practices under Article 195-6 of the Fair Trade Commission's notice of July 8, 1995 (hereinafter "the notice of this case"). The purpose of this article is to prohibit an enterpriser who has relatively superior position from abusing his position in order to ensure fair trade in order to ensure fair trade between the parties who have different economic power and to ensure the law in terms of mutual equal status. The issue of whether an act constitutes the superior position here should be determined by considering the situation of the market in which the parties are placed, the gap in the entire business ability between the parties, the characteristic and effect of the product, the characteristic of the transaction, the situation of the transaction, the degree of the enterpriser's superior position in the market, and the disadvantage of trade practice.

However, examining the reasoning of the judgment below in light of the records, the court below acknowledged the dominant position of the plaintiff company in the transaction with the intervenor. However, although the plaintiff company acknowledged the dominant position of the plaintiff company in the transaction with the intervenor, the reasons in the judgment such as the plaintiff company's failure to visit the plaintiff company's representative meeting once and two-day factory checks and the failure to deliver to some consumers and the low sales performance, etc. are not likely to be considered differently in light of the specific form and situation of the agent transaction between the plaintiff company and the intervenor, and the characteristics of other transaction products, it does not constitute a violation of the duty of trade to the extent that it does not allow an agent transfer which the plaintiff company ordinarily approved for the recovery of investment capital in existing agency, and it does not constitute a violation of the duty of trade with the specific intent, purpose, effect, and influence of the plaintiff company's refusal to approve the agent transfer on the above reasons, and the contents and degree of disadvantage that the plaintiff company is subject to the intervenor's refusal to transfer the plaintiff company's agency, and it does not constitute an abuse of the superior position.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)