1. Judgment on the grounds of appeal by the prosecutor

A. Article 23(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides for an act that falls under any of the following subparagraphs and that is likely to impede fair trade (hereinafter “unfair trade practices”), or that is prohibited from having affiliated companies or other business entities engage in such conduct. In addition, Article 23(1) of the said Act provides for an act of trading with another party by unfairly taking advantage of one’s own transaction position (hereinafter “unfair trade position abuse”).

Article 67 of the same Act provides that a person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding 150 million won, and that a person who has committed an unfair trade practice in violation of the provisions of Article 23 (1) (excluding subparagraph 7) (excluding subparagraph 2) of the same Act shall be punished by Article 23 (2) of the same Act:

Article 23(1) of the Prohibition Regulations provides that “No one shall commit any unfair trade or cause his/her affiliated company or any other business entity to do so.” On the other hand, Article 67 Subparag. 2, which is the penal provision (hereinafter “instant penal provision”), only stipulates that “a person who commits any unfair trade in violation of Article 23(1),” is “a person who commits any unfair trade.”

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. Article 15 of the Fair Trade Act to the extent included in the “person who committed an unfair trade practice” under the instant penal provision, when the Fair Trade Act was enacted by Act No. 3320 on December 31, 1980, the business entity constitutes one of the following unfair trade practices: