2012du5589 Action for revocation such as a corrective order

C. C. C. C. C. C. C. H.C.

Fair Trade Commission

Seoul High Court Decision 2011Nu15369 Decided February 2, 2012

March 27, 2014

The appeal is dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined.

Article 23(1)4 and (2) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 12095, Aug. 13, 2013); Enforcement Decree of the former Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 2010, Aug. 13, 2013)

5. Article 36(1) and 36(1)6 of the Presidential Decree (amended by Act No. 22160) provides that "an enterpriser's act of unfairly taking advantage of his/her trading position and trading with the other party" as a type of unfair trade practices. The purpose of this provision is to prevent an enterpriser from taking advantage of his/her position and disadvantage in trading with the other party at least in order to ensure fair trading between trading partners who have different economic power in real transactions. Whether an enterpriser unfairly takes advantage of his/her position and position in trading is to prevent an enterpriser from taking advantage of his/her position and at least in order to ensure fair trading between trading partners who are in a position that can have a considerable influence on the other party's trading activities. Whether an enterpriser unfairly takes advantage of his/her position and position in trading, the difference in the overall business ability between the parties, the purpose, effect, and specific attitude of the act in question, the degree of superior position in the market, and the degree and degree of disadvantage that the other party becomes the other party to trading."

According to the evidence (1) of the judgment below, the court below held that the plaintiff is in a position to have a significant impact on business operators' trading activities against 9 MP, including the media, which was produced in the pay-charging market. (2) The plaintiff is in a position to have a significant impact on business operators. (3) The court below held that the plaintiff is in a position to have a significant impact on business operators' trading activities from February 2007 to September 2008.

In light of the following circumstances: (a) the above MP business operator requested the Plaintiff to purchase the advertising space of the instant magazine; and (b) the above MP business operator purchased the advertisement space of the instant magazine from the Plaintiff; (c) it was recognized that there was no significant difference between the Plaintiff and the Plaintiff; (d) the MP business operator did not comply with the request to purchase the instant magazine; and (e) the MP business operator did not suffer any disadvantage due to the Plaintiff’s failure to comply with the request to purchase the instant magazine; and (e) the above MP business operator’s joint marketing necessity with the Plaintiff, the public relations effect on the instant magazine through the instant advertisement, the purpose of publication of the instant magazine, and the unit price level of the instant advertisement compared with other free magazines; and (e) the above facts alone are insufficient to recognize that the Plaintiff forced the Plaintiff to purchase the instant magazine by unfairly taking advantage of its trade position by creating an objective situation in which it was impossible to purchase the advertisement space of the instant magazine.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding abuse of trade position and coercion of purchase, or by failing to exhaust all necessary deliberations, or by omitting judgment, contrary to what is alleged in the grounds of appeal.

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 Shin Young-chul

Justices Lee Sang-hoon

Justices Kim Yong-deok

Justices Kim So-young