The meaning of the latter part of Article 19(1) of the Monopoly Regulation and Fair Trade Act “act of causing another enterpriser to engage in an unfair collaborative act,” and whether the act of merely aiding and abetting another enterpriser’s unfair collaborative act is included therein (negative)

Article 19(1) of the Monopoly Regulation and Fair Trade Act

Supreme Court Decision 2009Du1556 Decided May 14, 2009

[Defendant-Appellant] M&S Korea Co., Ltd. (Law Firm Sejong, Attorneys Kim Ha-soo et al., Counsel for defendant-appellant)

Fair Trade Commission (Law Firm Hannuri, Attorneys Realization-ju et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2017Nu81825 decided September 12, 2018

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 19(1) latter part of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) refers to the act of inducing another enterpriser to engage in an unfair collaborative act, or similar act, and it does not include the act of merely aiding and abetting another enterpriser to engage in an unfair collaborative act (see Supreme Court Decision 2009Du1556, May 14, 2009).

2. The court below held that the Plaintiff’s act of this case does not constitute “abetting or similar act” in order for the Plaintiff to perform an unfair collaborative act, on the ground that the Plaintiff’s act of this case did not constitute “abetting or similar act,” on the following grounds: (a) the Plaintiff’s demand for the increase of public position was made in 2009, and (b) the Plaintiff’s demand for the increase of public position was made in 2009; and (c) it was difficult to deem that the Plaintiff unilaterally offered public position according to the recommended public position; and (d) it is difficult to deem that there was an economic incentive to induce the Plaintiff to raise public interest or to conduct any similar act, on the ground that there is conflict between the Plaintiff and the Plaintiff’s interest as to the increase of public position.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the teachers of unfair collaborative acts, or by exceeding the bounds of the principle of free evaluation of evidence

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)