1. Judgment on the grounds of appeal by the prosecutor

A. Relevant legal regulations and issues

Article 23(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides that “an enterpriser shall not engage in any act which falls under any of the following subparagraphs and which is likely to impede fair trade (hereinafter “unfair trade”), or require affiliated companies or other enterprisers to engage in such act.” Article 23(1)4 of the same Act provides that “an act of abusing position in a trade with another party by unfairly taking advantage of one’s trading position (hereinafter “act of abusing position in a trade”).” Article 67 of the same Act provides that “a person who falls under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 1.5 million won.” Article 2 of the same Act provides that “a person subject to punishment shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding 1.5 million won.”

As above, Article 23(1) of the Prohibition Regulation provides, “No one shall engage in, or cause his/her affiliated company or any other business entity to engage in, any unfair trade.” On the other hand, Article 67 Subparag. 2 (hereinafter “instant penal provision”) which is a penal provision is merely stipulated as “a person who engages in, any unfair trade in violation of Article 23(1).”

The key issue of this case is whether the instant penal provision punishs only a person who directly engaged in an act of abuse of trade position, which is an unfair trade practice, or a person who causes affiliated companies or other business entities to do so.

B. The scope included in “a person who committed an unfair transaction” under the instant penal provision

When the Fair Trade Act was enacted by Act No. 3320 on December 31, 1980, Article 15 provides that "an enterpriser shall not engage in any of the following unfair trade practices." Article 15 provides that "an act of abuse of status in trade" shall be prohibited under subparagraph 4 of the same Article, and Article 56 provides that "an act of abuse of status in trade shall be punished by a fine not exceeding 50 million won" under subparagraph 2 of the same Article that "an act of abuse of status in trade" shall be punished by a fine not exceeding 50 million won. Since the amendment was made by Act No. 3875 on December 31, 1986, Article 15 provides that "an act of abuse of status in trade shall not be committed by an affiliated company or any other business entity," and that "an act of violation of Article 15 (1) shall be punished by a new provision that prohibits an enterpriser from doing any of such unfair trade practice, as in the latter part of Article 23 (1) of the current Fair Trade Act."

On the other hand, as amended by Act No. 4513 on December 8, 1992, Article 24-2(1) of the Fair Trade Act newly establishes a provision that imposes a penalty surcharge on violations of the prohibition provisions on unfair trade practices under Article 24-2(1). similar terms to the above penal provisions, “if there is an unfair trade in violation of the provisions of Article 23(1),” the relevant business entity was determined as subject to a penalty surcharge. After being amended by Act No. 7315 on December 31, 2004, the phrase “if there is an unfair trade practice” under Article 24-2(1) was deleted from the limited meaning “if there is an unfair trade practice” and simply changed the phrase “if there is an act” under the previous provision. The phrase alone can be interpreted as if the business entity, who is the subject of the violation of Article 23(1), directly engaged in such unfair trade practice pursuant to the former part, may be deemed as one subject to a penalty surcharge. The amendment of Article 24-2(1) of the above is an affiliated company.

Article 23(1) and Article 67 subparag. 2 of the Fair Trade Act, and Article 67 subparag. 2 of the same Act, and Article 67 subparag. 2 of the same Act, are the principle to strictly interpret and apply penal provisions in accordance with the language and text of the relevant provision, and Article 67 subparag. 2 of the same Act, which is the penal provisions for the violation of Article 23(1) of the Fair Trade Act, shall be punished only by natural persons who committed the violation for the sake of the business operator, and a corporate business operator shall be punished only by the person who committed the violation, as in the instant case, only if the person who committed the violation satisfies separate requirements under Article 70, which is a joint penal provision, is subject to punishment, and the interpretation or application of the above provisions is not necessarily required. In full view of the above, the following conclusions can be derived from the issues

Article 23(1)4 of the Fair Trade Act provides that “Where an enterpriser has an affiliated company or any other business entity engage in an act of abuse of status directly in a transaction,” a business entity shall not be subject to criminal punishment under Article 67 subparag. 2 of the same Act on the ground that it violates the prohibition provisions under Article 23(1)4 of the Fair Trade Act, and thus, may be subject to separate sanctions under the Fair Trade Act, such as the imposition of penalty surcharges.”

C. Appropriateness of the lower judgment

The lower court determined that the part of the facts charged by the Defendant that caused its affiliates to abuse trade position, which is a kind of unfair trade practice, does not constitute a subject of punishment under Article 67 subparag. 2 of the Fair Trade Act. Such determination by the lower court is justifiable in light of the above legal doctrine, and the lower court did not err by misapprehending the legal doctrine on the interpretation of the above provision, contrary to what is alleged in the grounds of appeal (the allegation in the grounds of appeal disputing the first instance judgment on a different premise does not affect the conclusion of the lower court’

2. Judgment on the Defendant’s grounds of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the subject of the Fair Trade Act and the requirements for establishing an act of abuse of trade position as an abuse of trade position.

3. Conclusion

The appeal by the prosecutor and the defendant is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)