[2] In a case where the Fair Trade Commission ordered correction and payment of a penalty surcharge on the ground that Gap corporation, etc., engaged in the commercial services, etc., advertised that "I present terms and conditions of customer-oriented contract, such as an exercise guarantee system, etc. which can be guaranteed regardless of the existence or abolition of the company," thereby making a false or exaggerated advertisement under Article 3 (1) 1 of the Act on Fair Labeling and Advertising, the case holding that the above advertisement constitutes false or exaggerated advertisement, but it erred in the misapprehension of legal principles as seen otherwise in the judgment below

[2] The case holding that the Fair Trade Commission erred in the misapprehension of legal principles as to fair trade order or in the misapprehension of legal principles as to fair trade order by offering false or misleading products, although the advertisement of the exercise guarantee system after closure of the business was not directly used for the term "for example," "I would like to present terms and conditions of customer-centered contract, such as the exercise guarantee system, which could be guaranteed regardless of the existence or abolition of the company," and "I would like to give" over fourteen times in the central daily newspaper, and "I would like to know that I would like to be able to believe and trust ? I would like to know that I would like to know that I would like to know that I would like to give rise to any false or exaggerated advertising" under Article 3 (1) 1 of the Act on Fair Transactions in Display and Advertising, on the ground that I would like to advertise "I would like to know the fact that I would like to know that I would like to offer false or exaggerated products."

1. As to the ground of appeal by the plaintiff Bochip Co., Ltd.

A. According to Article 3(1)1 of the Act on Fair Labeling and Advertising, and Article 3(1)1 of the Enforcement Decree of the same Act, false or exaggerated advertisements refer to advertisements that are likely to deceive or mislead consumers by excessively exposing facts, and that are likely to undermine fair trade order. On the other hand, general consumers form a total and extreme increase in terms of not only the expressions directly expressed in an advertisement, but also the overall and extreme increase in terms of the words, words, designs, designs, designs, sounds, or their combinations, and customary and ordinary circumstances. Thus, whether an advertisement is likely to deceive or mislead consumers should be objectively determined on the basis of the total and extreme increase in terms of the advertisement received by ordinary consumers with common care (see, e.g., Supreme Court Decisions 2002Du6527, Jun. 27, 2003; 2006Du65675, Jun. 27, 2005).

B. In full view of the evidence of its employment, the court below held that ① The plaintiff Bog Flag Co., Ltd. is a member of the Korea Trade Guarantee Co., Ltd. on its Internet homepage from June 1, 2007 to April 2, 2009, through the plaintiff Bog Flag's Internet homepage from June 1 to April 2, 2009. The certain portion of the monthly payment amount is entrusted to the Korea Trade Guarantee Co., Ltd., and even if the company's thickness is inevitable, it would cause the same contents as the goods specified in the contract and the terms and conditions through the mutual aid and aid guarantee, and it is recognized by the Korea Trade Protection Board. Of the monthly installments with the thickness of the members, some of the plaintiffs' safety devices are not entrusted to the Korea Trade Guarantee Co., Ltd., Ltd., and the plaintiffs are not entrusted to the Korea Trade Association or entrusted to the Korea Trade Association for 40 billion won, and the plaintiffs are entitled to the plaintiffs' payment of the amount of the monthly payment to the entrusted members under Article 400 billion won.

The lower court determined based on the aforementioned factual basis, that the advertisement for the event after the closure of the instant case by the Plaintiff Bochip Co., Ltd. was guaranteed only for the part of the amount paid by its members, but the advertisement for the event is likely to deceive consumers or mislead consumers, and that it constitutes false or exaggerated advertisements that might disrupt fair trade order, by raising an increase that the provision of mutual aid services is entirely guaranteed even if the said Plaintiff’s closure of business was made on a whole or a extreme basis, to general consumers.

In light of the above legal principles and records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to false or exaggerated advertisements under Article 3 (1) 1 of the Act on Labeling and Advertising.

2. As to the Defendant’s ground of appeal

A. As to the grounds of appeal Nos. 1 and 2

(1) According to the reasoning of the lower judgment and the record, the Plaintiffs advertised, through the Group website from June 1, 2007 to April 2, 2009, that “I will present a customer-oriented contract terms, such as the event guarantee system, which may be guaranteed regardless of the existence or abolition of the company.” (hereinafter “instant event guarantee advertisement”). ② The Plaintiffs advertised, “I will not be able to believe or be trusted ? I will know the fact that I will know the fact that I will join the company’s own guarantee business” during 14 times in the central daily period from November 25, 2008 to December 26 of the same year. < Amended by Presidential Decree No. 20427, Nov. 25, 2008; Presidential Decree No. 20130, Nov. 1, 2008; Presidential Decree No. 20100, Nov. 1, 2007; Presidential Decree No. 20100, Mar. 3, 2008>

(2) We examine the above facts in light of the legal principles as seen earlier.

After the closure of the instant case, the fact that the general consumers, who are linked to the advertising of the exercise guarantee system after the closure of the Plaintiffs, can easily leave with respect to the system guaranteeing the performance of the mutual aid service to its members even after the closure of the Plaintiffs, is the system that the guarantee company purchases a guarantee and provides the mutual aid service on behalf of the Plaintiffs. Therefore, as a general consumer, it is likely that the provision of the mutual aid service is guaranteed to its members, just as in the case where the Plaintiffs were engaged in normal business through the mutual aid guarantee system even after the closure of the business. In particular, the Plaintiffs have continuously subscribed to the mutual aid guarantee system through the central advertising or advertising books, etc., and have promoted the advantages of the fact that the goods are safe for the provision of the mutual aid service by the Plaintiffs are continuously subscribed to the mutual aid guarantee system and sold by the Plaintiffs. On the other hand, since the mutual aid guarantee company guarantees the payment only for the part of the amount paid by its members, the implementation of the mutual aid service for its members cannot be guaranteed.

Thus, even if the advertisement of the exercise guarantee system after the closure of the business of this case did not directly use the term "mutual guarantee system", the advertisement is likely to deceive consumers or mislead consumers, and it constitutes false or exaggerated advertisements that are likely to disrupt fair trade order, by making the general consumers to engage in normal business through the mutual guarantee system as if the implementation of the mutual aid service was guaranteed, as in the case where the plaintiffs had been engaged in normal business even after the closure of their business.

Nevertheless, the lower court determined that, since the Plaintiffs did not use the expression “the mutual aid and guarantee system” but only used the expression “the exercise guarantee system,” it cannot be deemed that the general consumers, who followed the use guarantee advertisement after the closure of the instant case, could not be mistaken or misleading that they would be able to receive mutual aid services safely through the mutual aid and guarantee system even after the closure of the Plaintiffs’ business, and thus, revoked the corrective order listed in Articles 1-A and 2-A of [Attachment 1] and 1-2 of the lower judgment against the Plaintiff Bolar Development Co., Ltd. among the instant disposition, and the penalty surcharge payment order listed in paragraph (3) of the same Table against the Plaintiff Bolar Development Co., Ltd., Ltd., and the Bolar Development Co., Ltd., Ltd.

This is due to the misunderstanding of legal principles as to false or exaggerated advertisements under Article 3 (1) 1 of the Act on the Labeling and Advertising. The defendant's assertion pointing this out is with merit.

B. Regarding ground of appeal No. 3

According to the reasoning of the judgment below and the records, Article 6 (1) of the Commercial Aid Service Clause (hereinafter “Terms and Conditions of this case”) enacted by the defendant provides that if a member pays in advance all or part of the payment amount, a certain rate of the payment shall be discounted. Article 6 (2) of the Terms and Conditions of this case provides that if a company provides a mutual aid service to a member within one year from the date of advance payment, it shall return the advance payment discount to the member. Article 7 of the Terms and Conditions of this case provides that if a member provides a mutual aid service to a member within a certain period of time after joining a member, it shall additionally receive the expenses. Article 8 of the Terms and Conditions of this case does not impose any restriction on the scope or method of collection of the expenses. Article 7 of the Terms and Conditions of this case provides that if a member is provided with the mutual aid service before the full payment of the monthly installment payment, the remaining payment shall be paid in lump sum. Article 7 of the Terms and Conditions of this case sets a certain period of six months or one year after joining a member, and Article 8 of the additional expenses shall be provided within the same amount.

According to Article 7 of the terms and conditions of this case and Article 7 of the standard terms and conditions of this case, if a member provides assistance services to a member within one year after joining the member, the additional expenses to be paid by the member shall be included in the scope of such expenses, and the contents thereof shall be deemed to have been stipulated in Article 6 (2). This is a reasonable provision in accordance with Articles 8 through 8 of the standard terms and conditions of this case, which provides that if a member is provided with assistance services prior to the full payment of monthly installments, the remaining payments shall be paid in lump sum so that the member does not enjoy any benefit equivalent to the interest on installment payments.

Therefore, Article 6 (2) of the Terms and Conditions of this case cannot be deemed to violate the standard terms and conditions just because it additionally provides for the return of advance payment discount not provided for in Article 6 of the standard terms and conditions, and it is difficult to view that the plaintiffs' advertisement as "compliance with the standard terms and conditions" under Article 6 (2) of the standardized terms and conditions of this case is an advertisement that is different from the fact, excessively unfasible to the fact, and is likely to deceive consumers or mislead consumers, and thus, it is difficult

The judgment of the court below that made the same conclusion is just, and there is no error in the misapprehension of legal principles or omission of judgment as to false or exaggerated advertisements under Article 3 (1) 1 of the Display and Advertisement Act.

C. Regarding ground of appeal No. 4

Article 12(2) of the Terms and Conditions of this case provides that the company shall cooperate in the change of the area to which services are provided under the contract due to reasons such as directors, etc. of the members, as stipulated in Article 12(2) of the Terms and Conditions of this case, and additionally, the company shall bear actual expenses. However, since matters not specified in the Terms and Conditions of this case are newly prescribed in the Terms and Conditions of this case, it cannot be deemed unreasonable or unjust because it imposes actual expenses on the members who are the provider to whom additional expenses are incurred. Thus, the court below determined that it is difficult to view that the plaintiffs' additional provision of Article 12(2) of the Terms and Conditions of this case concerning the bearing of actual expenses for business trip not stipulated in the Terms and Conditions of this case as "compliance with the Terms and Conditions of this case" is an advertisement that is different from the fact, or excessively

In light of the relevant legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles or omission of judgment as to false or exaggerated advertisements under Article 3 (1) 1 of the Display and Advertisement Act.

D. Regarding ground of appeal No. 5

The court below determined that Article 15(4) of the standard terms and conditions stipulate that the full amount of payment shall be refunded when a member becomes a recipient of basic living benefits after a contract is made is reasonable and reasonable, since Article 15(4) of the standard terms and conditions of this case unilaterally imposes an obligation on a business entity by inserting the purpose of public assistance to a recipient of basic living benefits into the standard terms and conditions with the intent to achieve through a private contractual relationship between the business entity and the consumer. Thus, the court below determined that it is reasonable and reasonable to allow the full amount of payment to be refunded from the date of becoming a recipient of basic living benefits by taking into account the equity with the general members until the day when Article 15(4) of the standard terms and conditions of this case is revised and the day before the day when a recipient of basic living

In addition to the above circumstances stated by the court below, ① Article 15(4) of the standardized terms and conditions or Article 15(4) of the standardized terms and conditions of this case provides for the scope of refund by considering very exceptional circumstances where a member becomes a basic livelihood recipient after a contract. Thus, it is difficult to readily conclude that such matters are important matters that can affect ordinary consumers in determining whether to purchase the goods provided with assistance services. ② Article 15(4) of the standardized terms and conditions of this case does not aim at rationally coordinating economic interests between a commercial aid company and general members and establishing a fair trade order, but rather at the same time, intending to give preferential treatment to members who were basic recipients after the contract, who sacrifice the balance between the legitimate interests of the mutual aid company and the general members. ③ This case’s standardized terms and conditions of this case complies with the purport of the standardized terms and conditions overall concerning matters that may affect the rights and obligations of members. The remaining standardized terms and conditions of this case pointed out by the defendant in violation of the standardized terms and conditions of this case do not conflict with the purport of the standardized terms and conditions of this case.

Therefore, it is difficult to view that the advertisement “compliance with the standard terms and conditions” under Article 15(4) of the instant contract constitutes false or exaggerated advertisement under Article 3(1)1 of the Act solely on the ground that Article 15(4) of the instant contract provides the scope of refund money for cancellation to a member who becomes a basic livelihood recipient after the contract is partially different from that of the standard terms

The conclusion of the court below with the same conclusion is just, and there is no error in the misapprehension of legal principles or omission of judgment as to false or exaggerated advertisements under Article 3 (1) 1 of the Display and Advertisement Act.

E. Regarding ground of appeal No. 6

The court below held to the purport that Article 17 of the Clause of this case provides that the plaintiffs' employees shall bear the expenses for the supply of goods upon arrival of the event site due to the reasons attributable to the members that the plaintiffs' employees should bear the expenses for the supply of goods after arrival of the event site, which is not stipulated in the standardized terms and conditions, and thus cannot be deemed to impose unfair burdens on the members in light of its nature and the amount of the expenses for the supply of goods to be collected. The court below held that it is difficult to view that the plaintiffs' advertisement of "compliance with the standardized terms and conditions" in addition to Article 17 of the standardized terms and conditions of this case which are not stipulated in the standardized terms and conditions

In light of the relevant legal principles and records, the above determination by the court below is just, and there is no error in the misapprehension of legal principles or omission of judgment as to false or exaggerated advertisements under Article 3 (1) 1 of the Display and Advertisement Act.

3. Conclusion

Therefore, among the part of the judgment below against the defendant, the part of the judgment below against the defendant as to the corrective order as set forth in Articles 1-A and 2-A of the attached Table 1-2 of the judgment below against the defendant, and the part as to the order to pay the penalty surcharge as set forth in Paragraph 3 of the same Table against the plaintiff Bolim Development Co., Ltd., Bolim Development Co., Ltd., Bolim Gae, Bolim Galim, and Bolim Galim Co., Ltd., and the defendant's remaining appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)