시정명령및과징금납부명령취소
The appeal is dismissed.
Plaintiff
The request for taking over a lawsuit by the applicant is dismissed.
The costs of appeal are assessed against the Defendant.
The grounds of appeal are examined.
1. As to whether a software maintenance contract constitutes the supply of services
A. Administrative laws and regulations that serve as the basis for an indivative administrative disposition shall be strictly interpreted and applied, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the other party to the administrative disposition.
In addition, a teleological interpretation that takes into account the legislative intent and purpose, etc. is not entirely excluded, even if such interpretation does not deviate from the ordinary meaning of the text and text (see, e.g., Supreme Court Decision 2007Du13791, 13807, Feb. 28, 2008).
Article 2(1) of the former Fair Transactions in Subcontracting Act (amended by Act No. 11842, May 28, 2013; hereinafter “subcontract”) provides that a business entity shall entrust another business entity with the service, as a type of a subcontract agreement, and a business entity entrusted with the service shall issue a document stating a certain part of the subcontract before commencing the service performance to the subcontractor and shall not unfairly determine the subcontract price (Articles 2(1), 3(1), and 4(1)). The provision provides that a business entity entrusted with the service shall either take corrective measures or impose penalty on the principal contractor, etc. who has violated such provision.
(Articles 25(1) and 25-3 (hereinafter “service entrustment”) and 25-3 of the Subcontract Act include “the preparation of knowledge and information-related products or the supply of services” (Article 2(11). In such cases, “services” includes “the activities determined and publicly announced by the Fair Trade Commission” (Article 2(13)5). Accordingly, among the former service entrustment determined by the Fair Trade Commission (amended by the Fair Trade Commission Notice No. 2014-16, Dec. 23, 2014; hereinafter “instant notice”), and “software business operator under Article 2(4) of the Software Industry Promotion Act” shall be different business operators.