(영문) 서울고등법원 2017.2.15. 선고 2015누44280 판결

1. On April 24, 2015, the corrective order and penalty surcharge payment order issued by the Defendant to the Plaintiff as the Head of the plenary session Resolution No. 2015-125 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Facts recognized;

A. The plaintiff's status, etc.

The Plaintiff is a business operator running film and film distribution business, etc., and the C&M1 is a business operator running film distribution business. The Plaintiff is a business operator prescribed in Article 2 subparagraph 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”). The Plaintiff and C&M belong to the same business group, and are affiliated companies under Article 2 subparagraph 3 of the Fair Trade Act. The Plaintiff and C&M are the general status of C&M as follows.

(For the end of 2013, units: name, million won

A person shall be appointed.

(b) Market structure and current status of the domestic film industry;

1) Market structure

A) The film industry may be largely divided into four fields, such as investment, production, distribution, and screening. Investment and production levels ensure contents, such as production of motion pictures or import of foreign currencies, and distribution stages provide motion pictures to the movie screen opening, which is a contact point with actual visitors through various marketing activities, and show films through theaters, video, or twit (TV). At the present stage, the film industry can be seen as the characteristic of the Korean film industry. This is, unlike the traditional investment and system that the producer has played a leading role in the production and distribution of motion pictures and the entire license for motion pictures by investing an amount equivalent to the production cost in the production cost, and the production process refers to the investment method in which the producer works for the production company and then distributes profits in proportion to the production company and the ratio.

B) The domestic film industry continues to grow up. In 2013, the sales of the entire film industry amounted to KRW 1.88,83.9 billion, which is the largest amount, and the sales of entrance fees to the theater increased to KRW 6.6% compared to the year 2012. The number of visitors also recorded approximately KRW 9.21,320,000,000,000 compared to the year 2012, and the annual average number of visitors per population was 4.25 times, the world’s highest level. As a result of such increase in sales, the rate of annual investment in Korean motion pictures was 13.3% in March 2012 and 15.2% in March 2013.

C) The present distribution and screening business entities consisting mainly of large enterprises, and the cream content of the group’s film industry integration is as follows.

A person shall be appointed.

(ii) the structure and current status of the film distribution market;

(A) the domestic film distribution market;

Domestic film distribution market is a domestic distribution company, such as C&M, show show flux, bartain, bartain, cinemae service, Nexmantainment, etc., which began to engage in physical activities since 1988, and foreign direct actors such as the U. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. T.S. T. and U. S. S. S. S. S. S. S. S. S. S. S. S. S.C. are engaging in various competition.

In 2013, four domestic distributors, such as C&M, Nex Entertainment, Nex Entertainment, Culture Entertainment, and Expact Media Content, account for one to four parts in the order of 1 to 4 in the domestic film distribution market. They account for five to eight parts in the 2013 medium distributors, which are the distribution company of Hollywod Mydr, pedagogr, Bobricker, Nanthropic Telecommunications Korea, and Espops Korea in the 2010s.

(B) film distribution methods and distribution processes;

Major domestic distributors and foreign direct actors set up a screening schedule for the following year’s overall screening plan at the end of the year, such as allocating a script to the beginning of the year, strings, drillings, and the end of the year. Specific opening dates are determined by taking into account the competition and distribution schedule between domestic distributors, opening time of the screen screen, etc. In the past, a small number of TV theaters opened first and then opened from the local small and medium theaters, but a large-scale opening method opened simultaneously throughout the country after the appearance of a large-scale multiple theaters 2. The detailed film distribution process is generally as follows:

Do(20 to 60 days before the opening of 30 to 30 days) A motion picture screen to be sent out to each screen hall (20 days before and after the opening of 30 days before the opening of 10 to 14 days before the opening of 14 days before the opening of the City Council) a motion picture to be sent out of a motion picture (3 to 4 days before the opening of 3 to 4 days) a motion picture to be sent to each screen hall in consultation with the screen hall (1 week before the opening of 10 to 14 days before the opening of the City

(iii) the structure and current status of the film market;

A) Current status of the exhibition market

In 2013, the number of national theaters increased from 314 to 6.1% in 2012. The number of screen theaters in 2013 increased from 2,184 to 4.9% in 2012. The number of screen theaters in 2013 increased from 10% in 2004.

Domestic theaters are divided into a large and small-scale theater (hereinafter referred to as a "three-dimensional multiple theater") and a large-scale theater. However, due to the closure, closure, etc. of a small-scale theater, most of the present theaters are operated in the form of a large-scale multiple theater. The market share of a large-scale theater as of the year 2013 is 98.4% of the total number of visitors and 98.6% of the total sales base, and 94.9% of the total number of screen, and the total share of the three-scale multiple theaters is 96% or more of the total number of screens. The increase of annual guest share of the major multiple theaters is as follows.

A person shall be appointed.

The operation form of the three multiple theaters is divided into a consignment theater operated by the head office upon concluding a consignment management contract with the directly-managed movie theaters. As of the year 2013, the direct proportion of the three multiple movie theaters is 58%, and the proportion of the consignment theater is 42%. In the case of a consignment theater, the head office provides the brand of the company to the entrusted movie theaters, has all the authority for the operation of the movie theater, such as supply and demand of the film, distribution of profits with the film company, facility management of the movie theater, employees, etc., and in return, the entrusted management fee is paid.

B) Profit-sharing structure

In the case of the film industry, the film industry does not set a certain amount of the film supply price between the distributor and the theater, but takes the method of distributing the total admission fee of the theater to a certain ratio (hereinafter referred to as "ratio") during the film period. The distributing company shall send the amount obtained by subtracting the distribution fee from the installment paid from the theater to the investing company. The investing company shall divide the amount of net income remaining after limiting the total production cost and various kinds of expenses into the ratio agreed upon with the producing company.

The ratio of the Korean film differs by Seoul region, local region, foreign motion picture, and Korean motion picture. In Korea, unlike the United States, etc. applying the ratio of profit distribution differently according to the period of time, the ratio of profit distribution is somewhat different by the Seoul region, local region, foreign motion picture, and Korean motion picture.The ratio of Korean motion picture is 50:50 (Distribution Company), but the ratio of the Korean motion picture was changed to 55:45 on July 7, 2013 in order to implement the Agreement on the Implementation of the Growth of Korean Motion Pictures. Meanwhile, in the case of a foreign motion picture, the ratio of Korean motion picture in Seoul is the same as that of Korean motion picture, but in the case of a foreign motion picture, the ratio has been changed to 60:40 on the ratio of the Korean motion picture in Seoul, but the ratio has been changed to 55:45 on the center of the foreign motion picture in Seoul, since the end of 2013.

For example, it is as follows. The film company receives admission fees of KRW 8,00 for each official per film industry. The film company will bring 3,480 won from the remaining 6,960 won after deducting 3% of the film development fund and 10% of the value-added tax, according to the ratio of the film company (50:50). The remaining 3,480 won bring about 10% of the distribution fee (348 won), and the distribution company will bring about 3,132 won from the remainder 3,132 won to cover total expenses such as production cost, financial cost, etc. In the case of remaining profits after the deduction, the profits will be divided according to the ratio set in advance by the investment company and the producer.

C. The defendant's disposition

1) On April 24, 2015, the Defendant issued a corrective order and a penalty surcharge order on the grounds that the Plaintiff violated Article 23(1)1 of the Fair Trade Act, Article 36(1) and [Attachment Table 1-2] 2(c) of the Enforcement Decree of the Fair Trade Act, Article 23(1)4 of the Fair Trade Act, Article 36(1) and [Attachment Table 1-2] 6(d) of the Enforcement Decree of the Fair Trade Act by providing unfair disadvantages and by providing unfair disadvantages.

(A) discrimination against an affiliated company;

From September 2010 to April 2014, the Plaintiff: (a) shown 25 film film (hereinafter “the film of this case”) among the movies supplied by C&M with the right to distribute; (b) on the screen screen screen screen, screen screen size, theater screen programming, field marketing, etc. The film distributed by C&M, which the Plaintiff handled in favor of, compared to the film supplied by other distributors. The film distributed by C&M, which the Plaintiff handled, is as shown below (hereinafter “the film of this case”).

A person shall be appointed.

○ Prohibitions against Theateral Discrimination

The plaintiff, in light of the programming standards based on show rate, shown in Part 14 motion pictures, such as 'R2B' distributed by C&M: The plaintiff set up a set of more screen pictures than those supplied by other distributors.4) In the course of determining the running time of motion pictures, the plaintiff extended the distribution motion pictures of C&M compared to the ordinary standards based on show performance.

○ discriminatory acts against the scale of the exhibition facility

The plaintiff, in light of the formation standards based on interest rate, assigned a larger screen to show 8 film, such as a 'unauthorized person', which is distributed by C&M.

○ A discriminatory Action against the Track Pre-Announcement

The Plaintiff organized the extreme pre-announcement of motion pictures in Part 2, such as "Dara City-D's harmful novels, among the motion pictures distributed by C&M," unlike ordinary standards, raised the ratio of pre-announcement of motion pictures distributed by C&M to the running time of the motion pictures, and screened the pre-announcement of motion pictures prior to the opening of the motion pictures.

○ On-site marketing discriminatory acts

With respect to the film distributed by C&M, the Plaintiff placed promotional materials used by the film theater to be exposed to the audience in a place easily accessible to the audience, and had the exhibition hall employees sell the film to the customer.

B) Unfair disadvantage provision

From January 201 to March 2014, the Plaintiff issued, without prior consultation with a distributor, a discount right provided in connection with a neighboring business district among the theaters or consignment theaters directly operated by the Plaintiff. During the pertinent period, the Plaintiff’s film theaters conducted a total of 170 events for issuing a discount right, and the total amount of discount is KRW 83,956,00 ( KRW 98,678,000, KRW 98, KRW 65,837,000, KRW 00, KRW 65,837,000, KRW 17,41,000 in 2014).

2) The Defendant imposed penalty surcharges on the Plaintiff regarding the discriminatory treatment of affiliated companies pursuant to Articles 24-2 and 55-3 of the Fair Trade Act, Articles 9 and 61 [Attachment Table 2] of the Enforcement Decree of the Fair Trade Act, and the detailed criteria for imposing penalty surcharges (amended by Defendant Notice No. 2013-2, Jun. 5, 2013). The specific calculation details are as follows.

A) Criteria for calculation

(a) Related sales: 211,834,839,717 won;

○ From September 201 to April 2014, 201, the sum of the sales revenue of admission fees from the direct management official of the motion pictures traded with favorable contents compared to the motion pictures distributed from other distributors among the motion pictures supplied by C&M, an affiliated company, to the Plaintiff with the right to distribute for the period from September 201 to April 201.

A person shall be appointed.

(2) Criteria rate: 1.5%;

Considering the intent and purpose of the act, the circumstances leading to the act, etc., it is difficult to view it as a normal business practice, and it has caused or is likely to cause considerable damage to many trading partners. However, the vertical integration in the film industry has positive aspects such as investment attraction and expansion of production, etc., and considering the characteristics of the domestic film exhibition market in excess of the purpose of the act, comprehensively taking into account the fact that the effect of restricting competition caused by the act of the plaintiff's discriminatory act is limited

(3) Determination of calculation criteria: 3,177,52,595 won (=211,834,839,717%) X1.5%

(B)the primary coordination by a component of the act and the secondary coordination by a component of the actor;

○ There is no matter that constitutes grounds for mediation.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. Determination on the legitimacy of the instant disposition

A. Part concerning the discrimination against affiliated companies

1) Summary of the Plaintiff’s assertion

In order to maximize the profits of the film, the Plaintiff only decided the screen screen, screen screen, etc. in accordance with the criteria such as the prediction and audience performance, and did not have any discrimination in favor of the film distributed by the C&M, which is an affiliated company, in the process. There was no discriminatory act in favor of its affiliated company in relation to the theater’s pre-announcement program or field hosting support. Even if there was a discriminatory act on the film of this case, it is difficult to regard it as a significant discriminatory act. Even if there was a discriminatory act on the film of this case, it is difficult to regard it as a significant discriminatory act in the development of the film industry. There is a justifiable reason for the Plaintiff’s act. Since the instant act, there is a growing market share of the competition distributor as well as the competition in the relevant market, it cannot be deemed that the Plaintiff’s act was detrimental to the fair trade by strengthening or maintaining the dominance control in the domestic film distribution market.

2) Determination

The latter part of Article 23(1)1 of the Fair Trade Act provides that an act that unfairly discriminates against a trading partner and is likely to impede fair trade shall not be committed. Article 36(1) and [Attachment Table 1-2] 2(c) of the Enforcement Decree of the Fair Trade Act, which provides for the type of unfair trade practices pursuant to Article 23(3) of the same Act, provides that “any act significantly favorable or unfavorable to the trading conditions, such as price, quantity, quality, etc. or transaction details, in order to benefit one’s affiliated company without justifiable grounds.” Accordingly, in order to establish a discriminatory act for an affiliated company falling under Article 23(1)1 of the Fair Trade Act, there should be significant discriminatory acts as to the trading conditions or transaction details, and such act should be derived from the purpose of favorably favorable to the affiliated company, and the pertinent act must be likely to impede fair trade in the market without justifiable grounds.

As a requirement for discrimination against an affiliated company, the intent of favorable treatment is insufficient to recognize the fact that a specific business entity conducted business activities for its own interest favorable to an affiliated company. It is recognized only where the enterpriser’s main intent is determined to restrict competition in a particular business area to which the affiliated company belongs and to strengthen an enterprise’s economic power by comprehensively taking into account the motive of discriminatory act, the subject of attribution of its effects, transaction practices, and the situation of the affiliated company at the time. In assessing the illegality of discrimination against an affiliated company, the mere fact that the necessity or rationality of business operations or transactions is recognized in assessing the illegality of discrimination for the affiliated company does not deny its illegality, but the necessity of business operations, etc. which caused discriminatory treatment can be one of the factors to be considered in determining the existence of fair trade practices by evaluating it from the perspective of fair trade order (see, e.g., Supreme Court Decisions 2002Du12076, Dec. 9, 2004; 2004Du1425, Feb. 23, 2007).

Based on these legal principles, comprehensively taking account of the following circumstances acknowledged earlier, and recognized by the respective statements and arguments set forth in Gap evidence Nos. 2 through 8, 22 through 36, and Eul evidence No. 51, it is difficult to readily conclude that the Plaintiff committed a significant discriminatory act in terms of the terms and conditions of transaction or transaction with the intent to benefit YM, which is an affiliated company, solely based on the materials submitted by the Plaintiff. It is difficult to deem that the Plaintiff’s act is likely to interfere with fair trade without justifiable grounds. The Plaintiff’

A) Existence of the discriminatory act and the substantial nature of the discrimination

(1) Movies appear to be of low repetition of consumption compared with other goods. The film industry is a highly dangerous industry due to uncertainty of the demand for motion pictures. Accordingly, the film screeners attempted to predict accurate demand in consideration of various interest factors with respect to the motion pictures opened to maximize their own profits, and, in fact, adjusted the screen screen and screen size by motion picture promptly in response to the prediction of real-time demand. The demand forecast is not only an element such as the reduced distance of motion pictures themselves, week and completion degree, but also a place where the film screen is located, the age group and occupation group, opening time, and social atmosphere of the said place, and thus, the film industry belongs to an extremely high risk industry. Accordingly, the film screen screeners is not obliged to open a new film network for 14 years prior to the announcement of the motion picture screen content (in any case, it is also difficult to 14 years prior to the announcement of the film screen content.

(2) The seat seat ratio means "the seat ratio assigned to the film among the total seat of the movie theaters", and the seat ratio means "the seat ratio of the audience admitted to the film among the total audience admitted to the film by the movie theater." If the seat ratio means "the seat ratio" is higher than the seat ratio, it means that the seat is assigned more than the seat ratio to the audience, and if the seat ratio is higher than the seat ratio, it means that the seat ratio is less than the seat ratio of the audience admitted to the film, the seat ratio is less than that of the audience admitted to the film. In addition, it is significant that the Plaintiff's vehicle's 4-6-6-6-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-77-77-77-7-77-77-77-77-77-77-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-7-

(3) According to the following judgment, it is difficult to view that the existence of a discriminatory act against the screen set forth in the written resolution has been sufficiently proven.

① We examine the instant film table No. 12’R2B: L2B. The Defendant asserted that the Plaintiff adopted a proposal to allocate 250 screeners when establishing the first screen program for the said film, but the Defendant finally allocated 265 screeners according to the demand for additional programming of C&M, but the above assertion is not accepted. 8) Other materials cited by the Defendant are difficult to recognize the existence of a discriminatory act, and even if the Plaintiff allocated a little number of screeners compared to the Plaintiff’s total number of screeners, it is difficult to deem that such circumstance alone constitutes a discrimination against an affiliated company.

② We examine this case’s film table No. 19’s 19’s screen. The Defendant asserted that even if the Plaintiff’s show records of ‘official watch’ distributed by non-affiliated companies are better than that of ‘spion,’ the Plaintiff demanded the screen board’s change to ‘spion.’ The health unit Plaintiff sent the above contents of e-mail to 4-5’ after the film was opened. The Plaintiff’s presentation of e-mail was 4-5’ and above e-mail was more than 45% of the official watch of the above e-mail. However, the Plaintiff’s opening of the above e-mail was reduced rapidly, and thus, the difference between the 45’s official watch and the 10% of the above e-mail’s opening of the said e-mail was difficult to view that the above e-mail did not decrease without any reasonable ground. In light of the above circumstances, the Plaintiff’s assertion that the above 5’s opening of the e-mail of the above e-mail.

③ We examine the film table No. 10 and No. 11 of this case. The defendant asserts that the plaintiff extended the number of screen assemblies of non-affiliated company's motion pictures by adjusting the difference between 's screen pictures' and 's screen pictures' and 's screen pictures'. According to the evidence No. 22 of the Health Unit Gap, the plaintiff seems to have judged that there was a need to adjust the screen screen in consideration of the show performances of 's screen license' and 'nuring', and it is difficult to conclude that the above decision is unreasonable. In addition, even if the defendant examined the business contact for the parking screen of May 1, 200, the plaintiff's internal document No. 22, which is the plaintiff's internal document No. 1 of this case, it is difficult to view that the contents of the above document were considerably low in terms of public holidays and weekends, and thus, it is difficult to accept the above 's argument that there was a free act in itself.'

④ We examine the film table No. 7.7'7's mine area of this case. The defendant asserts that even in the situation where the guest performance of the "seven mining area" has been reduced, the defendant tried to minimize the reduction of the screen reduction. However, if the defendant's internal document, which is the plaintiff's internal document claiming a discriminatory act, is "the co-owned case related to the change of the schedule for the screen of the commercial area", the main contents of the above document should be replaced by the non-affiliated company's non-affiliated company's other film. The above argument is rejected.

⑤ We examine this case’s film table No. 14’s film table. The defendant asserts that the defendant planned to add 10,000 seats even though the guest share of “Tawork” was low. It is doubtful whether the film screen should be reduced solely on the ground that the ordinary guest share of “Tawork” was 16.6% as the defendant cited without properly reviewing the passenger share of other movies at the time of health class. In addition, according to the Plaintiff’s internal document evidence No. 23, unlike the Plaintiff’s internal document statement presented by the Defendant, the Plaintiff gradually reduced the seat of the above film. The above argument is not acceptable.

(6) We examine the instant film table No. 2, 2, grob, and 3, dial stroke. The Defendant asserts that there was a discriminatory act against the Plaintiff on the basis of the internal document of the Nenema. However, it is difficult to accurately determine whether there was a discriminatory act against the Plaintiff’s film solely on the part of the document predicting the Plaintiff’s internal circumstances. Moreover, it is difficult to accept the said assertion on the grounds that there is a difference between the document and the Plaintiff’s actual frequency allocation for the film.

7) In relation to the running period, the Defendant asserted that the motion pictures from 2011 to 2013, among the motion pictures shown by the Plaintiff for more than five weeks, were differentiated by the Plaintiff by unfairly extending the motion pictures distributed by C&M on the basis of 10th order of the audience, based on the 2011 and the 5th order of the audience, among the motion pictures shown by the Plaintiff for more than five weeks, from 2011 to 2013. The Defendant determined the existence of discriminatory acts by applying voluntary standards to the Plaintiff’s motion pictures for an extension of the running period, without any special reasons, even if the motion pictures were shown in C&M’s order of motion pictures distribution for more than five weeks, it is difficult to accept the Plaintiff’s request for an extension of the running period under the same conditions as those indicated in C&M’s previous motion pictures distribution for more than 12 weeks. Moreover, the Defendant did not have any special reasons to recognize the existence or absence of discriminatory acts by 5th order of the motion pictures distribution.

(4) According to the following judgment, it is difficult to view that the existence of a discriminatory act against the size of the exhibition hall recorded in the written resolution has been sufficiently proven.

① We examine the film list No. 1 of this case. The defendant asserts that the plaintiff discriminated against the screen size by ordering non-affiliated companies to screen the "unauthorizedr" in larger theaters than the "Manonononononononono No. 1" distributed by non-affiliated companies. However, if the film list No. 4 does not include unilaterally and preferentially treating the "unauthorizedr" in relation to the allocation of the screen hall, but it seems that the plaintiff's assertion that the "unauthorizedr" audience is more or more than the audience of the "Mano No. 1" when the accurate audience trend of the film at the time is unforeseeable, it is difficult to view that the plaintiff's ‘unauthorizedr's view that it is unreasonable to allocate the audience of the "Mano-Mano 1" as much as possible. Furthermore, it is difficult to see that the plaintiff's argument that the "unauthorizedr's screen operation" belongs to the "Mano-Mano. 1.

② We examine this case’s film table No. 19’s film list. The defendant asserted that the plaintiff, around September 4, 2013, at the same time, there was a higher level of expectation of ‘spatitual' and ‘spatitual distribution' among ‘spatitual distribution' and ‘spatitual distribution', despite the high level of expectation of ‘spatitual interest', there was a discrimination in the size of the screen screen by ordering the plaintiff to assign the largest theater to ‘spatitual' and to assign a simple large theater for ‘spatitual'. However, according to the evidence No. 7 and No. 8, the plaintiff showed that there was a higher example of ‘spatitual distribution' and ‘spatitual distribution' of ‘spatitual exhibition', the plaintiff would not be found to have any more than ‘spatitual distribution' of ‘stitual and spatitual exhibition in the same way as above.

③ We examine the instant film table No. 18. The Defendant asserts that even though the anticipated interest rate of ‘satisfy' and ‘satisfy' distributed by non-affiliated companies was similar, the Plaintiff instructed the Plaintiff to assign heavy-type officials to the 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's ''.' The Plaintiff’s above direction was a matter of August 9, 2013, which was prior to the opening date of the said film. The Plaintiff’s 's 's 11' 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's ''' 's 's 's ' ' 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 1.

④ We examine the plaintiff's 14 u sony, 20 mar 21 mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar.

⑤ We examine this case’s film table No. 16’s film table. The Defendant pointed out that the Plaintiff’s establishment of the Plaintiff’s “betain” by setting up it at different theaters, thereby ordering the exhibition hall to subdivide and place the running time to view the motion picture at other theaters immediately after the completion of the motion picture. However, it is difficult for the Defendant to deem that there was a significant discriminatory act by the Plaintiff in relation to the allocation of the running hall or that there was a clear intention to treat discrimination.

⑥ 이 사건 영화 표 연번 25 '노아'에 대하여 살펴본다. 피고는 원고가 '노아'에 대형관과 중형관을 배정하고 IMAX, 4DX관 전부를 독점 편성하는 차별행위를 하였다고 주장한다. 그러나 위 영화는 투입된 제작비의 규모와 영화의 소재 등에 비추어 흥행이 예상되었고, 실제로 개봉 1주차에는 관객비중이 좌석비중을 훨씬 상회하기도 하였다. IMAX, 4DX 상영관은 IMAX, 4DX 형식의 입체영화의 상영을 위하여 만들어진 상영관이므로 IMAX 또는 4DX 형식으로 제작된 영화가 있는 경우에는 해당 영화를 IMAX, 4DX 상영관에 우선적으로 배정하는 것이 합리적이라고 할 것이다. 원고는 위 영화의 개봉 2주차에 개봉된 '캡틴아메리카: 윈터솔져'가 흥행실적이 좋을 것으로 예상되자 위 영화의 좌석비중과 대형관 편성을 대폭 줄이고 '캡틴아메리카: 윈터솔져'의 좌석비중을 50%로 편성하고 대형관, IMAX, 4DX관에 우선 편성하였다. 위와 같은 사정에 비추어 보면 피고가 제출한 증거만으로 원고의 위와 같은 상영관 배정이 현저한 차별행위에 해당한다거나 씨제이이앤엠이 배급한 영화를 유리하게 대우하려는 의도에 근거하였다고 보기에 부족하다.

(5) According to the following determination, it is difficult to see that there has been sufficient proof of discriminatory acts related to the formation of a theater set forth in the written resolution. The defendant asserts that the plaintiff committed a discriminatory act by organizing a high-time theater pre-announcement at a time compared to the film distributed by non-affiliated companies in which the opening date is imminent, or by organizing a high-level theater pre-announcement at a time compared to the film distributed by the tampers. The health professionals set up five to six theater pre-announcements per film, and ordinarily set the time of opening the film, the age and inclination of the main audience, the film and convenience viewing rating, the class and class of the movie and the class of the pre-announcement, and the class of the pre-announcement convenience. Therefore, it is difficult to view that the plaintiff's establishment of a discriminatory act on the basis of only the opening date of the plaintiff's 30% of the total pre-announcements at the 27% of the pre-announcements set out in the 30% of the pre-announcements market is inappropriate.

(6) According to the following determination, it is difficult to view that the existence of a discriminatory act regarding field marketing as stated in the written resolution has been sufficiently proven.

① The Defendant asserts that the Plaintiff placed propaganda materials of the motion picture in favor of other motion pictures in comparison with other motion pictures as to 14 u 14 u 14 u u u, 13 u u u, and 17 u u u u u u u. However, the said motion picture was opened more than the motion picture subject to comparison, and there seems to exist circumstances that are anticipated for entertainment in light of the results of entertainment and entertainment, the size of the motion picture, and the size of the motion picture supervising and the distribution of the motion picture. The above assertion is rejected.

② The Defendant asserts that the Plaintiff’s employees treated the instant film 22’s sprink 22 in favor of other movies distributed by non-affiliated companies by putting the Plaintiff’s employees e-mail and sprink for publicity and promoting movies. However, the Plaintiff’s employees’ on-site marketing where the Plaintiff’s employees wear e-mails, etc. for public relations purposes demand the pertinent marketing and bear costs. According to the evidence No. 36, there are many cases where the Plaintiff had engaged in on-site marketing for two weeks prior to opening the motion pictures distributed by non-affiliated companies with e-mails, etc. for public relations purposes. Comprehensively considering the above circumstances, the Plaintiff cannot be deemed to have remarkably discriminated against the said motion pictures in the field marketing without reasonable grounds. The foregoing assertion is rejected.

(7) The Defendant asserts that the Plaintiff treated the motion picture distributed by C&M from 2011 to 2013 on the basis of a difference in the composition of Mebblings, etc., which are the competitors. If the premise that the interest prediction of health care providers always takes place similar, it would be reasonable to display the motion picture programming in an excessive way. However, as mentioned earlier, it is difficult to view that the Plaintiff’s assertion that the motion picture distribution is considerably unfair on the ground that the motion picture distribution is not conducted by the Plaintiff, without considering the nature of the motion picture in question, the performance, social evaluation, opening time, opening time, and location of the motion picture in question, and other various factors such as the social issues related to the motion picture in question, it is difficult to view that the Plaintiff’s assertion that the motion picture distribution was conducted on the basis of a difference in the total content of the motion picture distribution among all kinds of motion pictures, and thus, it is difficult to view that the Plaintiff’s assertion that the motion picture distribution was conducted on the basis of a difference in the total content of the screen.

(8) According to the evidence evidence Nos. 2, 3, and 14, the Plaintiff’s motion pictures from September 2010 to April 2014 are about 1,343. Of them, the motion pictures distributed by C&M are about 145. The Defendant extracted only 25 motion pictures among the above motion pictures and asserts that there exists a significant discriminatory act against the Plaintiff. While examining the entire motion pictures shown by the Plaintiff during the violation period, the method of determining the existence of a discriminatory act by selecting only the above specific motion pictures is not likely to entail errors, without determining whether the Plaintiff has treated the motion pictures distributed by C&M as favorable to any extent. Considering the above circumstances, it is difficult to readily conclude that there was a significant discriminatory act against the Plaintiff even if there was a significant degree of discrimination against the Plaintiff even if there were some of the aforementioned motion pictures committed against the Plaintiff.

(9) The Defendant’s “CJ CJ E&M of the CGV as the basis for discriminatory acts” (Evidence No. 52) is deemed to be related to the economic analysis of the distribution film discrimination (Evidence No. 52). In the above materials, there is a limitation on the outcome of the analysis in that the existence of a discriminatory act has been recognized through comparison between the exhibition hall other than the Plaintiff, which shown the instant film, and the Plaintiff. However, without considering individual and specific circumstances of each exhibition hall, there is a limitation on the analysis in that each exhibition institute was conducted without considering individual and specific circumstances. It is not appropriate that a correction order, etc. was issued by the Defendant on a separate basis on the ground that a discriminatory act was committed against the Plaintiff. Furthermore, even if the result of the analysis, it is reasonable to view that the degree of difference between the exhibition hall other than the Plaintiff and the Plaintiff, as well as the number of seats, etc., expressed between the Plaintiff, does not reach the level to

B) Purpose in favor of its affiliates, prejudice to fair trade, etc.

Even if the Plaintiff appears to have a high portion of the film screen, etc. distributed by C&M compared to other film theaters, in light of the background of the film screen and the screen screen size, etc., and the Plaintiff’s response details based on actual show performance, etc., as mentioned earlier, the Plaintiff’s act may be deemed to have been conducted in an effort to maximize the Plaintiff’s economic interests by analyzing the specific show performance, etc. of individual film, and as such, it cannot be concluded that C&M’s act was in favor of C&M as it is merely attributable to C&M’s outcome of business activity in accordance with the relationship with the Plaintiff and C&M, and thus, it cannot be concluded that there was any intent to favorable Gab’s affiliated companies. In addition, it is difficult to view the instant act as an act likely to impede fair trade in light of the trend of the film industry, overall competition situation of the film industry, business strategies chosen by the screen theaters, etc.

B. The part on the act of unfair disadvantage provision

1) Summary of the Plaintiff’s assertion

The Plaintiff’s act of issuing human rights in this case was conducted by prior agreement with a distributor, and it does not constitute an act of disadvantageous provision because it is favorable to a distributor by contributing to the increase in sales. Moreover, the Plaintiff committed an act of issuing human rights in this case for the purpose of promoting the sale of film diskettes and promoting the sale of film tickets, thereby contributing to increasing consumer welfare by providing film screening services at a low price. This part of the act is not recognized as impeding fair trade.

2) Determination

Article 23(1)4 of the Fair Trade Act provides that an act that is likely to impede fair trade by unfairly taking advantage of his/her position in trade shall not be an act that is likely to impede fair trade. Article 36(1) and [Attachment Table 1-2] 6(d) of the Enforcement Decree of the Fair Trade Act that provides for the types of unfair trade practices pursuant to Article 23(3) of the same Act provides that an act that is unfavorable to the other party is subject to the aforementioned types of abuse of trade position, and that “an act that establishes or alters terms and conditions of trade or gives disadvantages to the other party in the course of implementation thereof by means other than acts falling under items (a) through (c) above.

In order to constitute an act of offering disadvantage as above, the mere fact that the content of the act is somewhat unfavorable to the other party is insufficient. It is recognized that one party established or modified the terms and conditions of transaction by unfairly using his/her transaction position to the extent that it can be deemed identical with compulsory purchase, coercion of offering profits, enforcement of sales target, etc. In addition, whether an act of offering disadvantage to the other party by unfairly using his/her transaction position constitutes an act of offering disadvantage by unfairly taking advantage of his/her transaction position should be determined by determining whether the act goes beyond normal transaction practices and is likely to impede fair trade (see, e.g., Supreme Court Decisions 97Nu19427, Jun. 9, 200; 2003Du1646, Jun. 29, 2006).

Based on these legal principles, comprehensively taking account of the facts acknowledged earlier and the following circumstances acknowledged by Gap's respective entries and arguments (including paper numbers; hereinafter the same shall apply) as well as the overall purport of Gap's evidence Nos. 13, 37, 38, 41 through 43, 65, 67, and 68 (including paper numbers), it is difficult to view the submitted data alone that the plaintiff unfairly used his/her transaction status through the issuance of human rights in the instant case to have set or altered the relevant transaction terms and conditions, or gave disadvantage to the other party during the course of the implementation thereof, and there

A) According to Gap evidence Nos. 13 and 37, the plaintiff agreed to conclude a basic screening contract between a distributor S&M, show show fex, KON Entertainment, motion picture company big, benton, etc., and "the plaintiff may implement policies for discount on individual admission fees to increase the number of visitors of individual motion pictures or the total admission income, or increase the convenience of the plaintiff and the distributor." According to this, the plaintiff agreed to pay a discounted amount at 50:50 percent of the discounted amount in principle, barring any separate written agreement, and therefore, the right to issue human rights to film diskettes is vested in the plaintiff, and there seems to have been prior agreement on the burden of discount amount.

B) The act of issuing human rights in the instant case can be deemed to have increased sales due to the act of issuing human rights, and this is also beneficial to the distribution company, so the Plaintiff’s act cannot be deemed to be unilaterally disadvantageous to the distribution company.

(1) According to the statements in Gap evidence Nos. 38, 41, 43, and 65, the following circumstances are acknowledged. The defendant's "the structure analysis of the film industry and competitive policy evaluation published in 2008" evaluated that the defendant contributed positively to the improvement of the profitability of the exhibition hall by providing various discount services for the movie pockets to increase the audience in that period. From the film consumer investigation data published in 2014, consumers responded to 6,606 won at the reasonable price of the film pocketet. According to the "regional theater status and support plan" published by the Korean Film Council, in 2012, 73% of the film pockets were purchased with credit cards, and 88.1% discount and mileage accumulation among them were considered. The above documents were analyzed as human rights factors to reduce the audience's use of the film pockets. In light of the fact that there is no means to discount the audience's use of the film pockets, it is difficult to deny the consumers' use of the film pockets' use of the film.

(2) According to Gap evidence Nos. 67 and 68, Gap states that "the discount of movie screen fee for motion picture show showers A" means that various spectators search for movie theaters and contribute overall to the expansion of the film market, thereby contributing to distributors. The distributors have received materials on the current status of sales of motion pictures distributed by themselves from screen theaters, and the above materials contain detailed descriptions such as the purchase of admission tickets and the total amount of admission tickets for each face value." The film business operator B states that "the number of visitors found the screen by expanding the discount service is increased as a whole, and the opportunity for a small and medium distribution company is increased as a result of increasing the number of visitors to the motion pictures distributed by a small and medium distributor, and that the motion picture business operator wishes to be issued a more discount right than a discount right." Considering the above circumstances, the film business operator stated to the effect that the aforementioned act of distributing the motion picture is also helpful to the effect that the above act of distributing the screen is also an act of distributing the screen.

(3) If the Plaintiff’s seat share is merely an average of 30%, there is little cost to increase the number of visitors, while the number of visitors increases more than the increase in the number of discount compared to the increase in the number of discount.

C) It is reasonable to allocate expenses incurred in order to increase revenues in proportion to the ratio of profit distribution. As such, it is difficult to deem that allocating expenses according to the ratio between the Plaintiff and the distributor with respect to issuing human rights in the instant case is an unreasonable disadvantage provision. Furthermore, the current status of issuing human rights in the instant case is as indicated below, and the proportion of issuing human rights in the instant case, compared to the sales, is considerably limited to 0.05%.

(unit: ,000 won)

A person shall be appointed.

D) In light of the method of issuing human rights in the instant case and the practice of industry, etc., consumers can see the film at a low price due to the act of publishing human rights in the instant case. Therefore, it is difficult to view the submitted materials alone as constituting an act that deviates from normal transaction practices and is likely to disrupt fair trade.

C. Sub-committee

Unless the grounds for the disposition of this case are recognized, the corrective order of this case and the penalty surcharge payment order of this case shall be revoked.

3. Conclusion

It is so decided as per Disposition by the assent of all participating Justices on the ground that the plaintiff's claim seeking the cancellation of the disposition of this case is with merit.

Judges

Judges Lee Dong-won

Judges Yoon Jong-dae

Judge Lee Jae-soo

Note tin

1) 'C&M Co., Ltd.' is written in the same manner, and the name of another company is omitted in the name of another company.

2) On April 198, 1998, in Korea, the International Entertainment Business Department established a cream 21's first large theater of the Republic of Korea (11's screen) in collaboration with the hives of Hong Kong or the hives of Australia (the name of the company was changed to the Plaintiff on March 3, 2001, October 2002) by establishing a cream diversity diversity (the name of the company was changed to the Plaintiff) in collaboration with the hives of Hong Kong or Australia.

3) On April 26, 2016, the Defendant stated that the annual screening schedule No. 1 was made in writing, and that there was a discriminatory act against the screen board in column No. 6, 16, 17, and 21 each year, and that there was a discriminatory act against the screen board in column No. 14.

4) The screen screen is to calculate the total number of movies shown in the screen. The screen screen is to show a film of up to 6 times in one film theater (skin) for a day normally. In this case, the screen shall be calculated as 6 times.

5) On the film list of the instant film, the field marketing discrimination was written in the column Nos. 6, 13, 17, and 22 only once a year.

6) approximately 34.9% of the seat seats in 201 and approximately 40.1% of the audience seats in 2012, approximately 29.7% of the seat seats in 2012, and approximately 31.1% of the audience seats in 2013, and approximately 24.8% of the seat seats in 2013, and approximately 23.8% of the audience seats in 2013.

7) The entrusted theater is a theater that has entered into an entrusted operation contract with the Plaintiff and received all services related to the operation of the exhibition hall from the Plaintiff, including the use of brand, the vicarious management of advertising and facilities, the use of the advertising computer system, and the use of the audience know-how.

8) The Plaintiff points out the following points. The number of scraps 250 is based on the standards for calculating the number of scraps of the Plaintiff, and the final number of scraps 265 is based on the data of the Korean Film Council’s Integrated Computer Network. The Plaintiff calculated that one screen is allocated only when not less than half of the rents shown in the relevant screen (for example, not less than three times among six times) is shown. On the other hand, the Korean Film Council’s Integrated Computer Network calculated that one screen is allocated at one time from one screen, and it is calculated that one screen is allocated at one time in the Korean Film Council’s Integrated Computer Network. As such, the number of scraps finally allocated to the said film according to the standards for calculating the number of scraps of the Plaintiff is more than 243 (Evidence 21). The Defendant stated that the Defendant cannot verify any of the standards used when the Plaintiff calculates the number of scraps from the preparatory document on June 9, 2016.

9) According to the relevant investigation (Evidence No. 42 of A), more than 95% of the spectators subject to the investigation were accompanied by their families, relatives, etc. to view the film, and only the spectators less than 5% were confirmed to view the mixed film.

10) Economicly, flexibleness of the price strength of demand means that a change in demand is more than 1% when the price has changed by 1%. This refers to a sudden response of the price change to the quantity of demand. According to the evidence No. 43, film film is presumed to have the price strength of demand 1.07-3.42.

11) C =B/1.13 】 0.5 】 (The value of supply of motion pictures, including the Motion Pictures Development Fund of 3% and the value-added tax of 10%, is determined, the amount attributable to the distributor out of the film pockets shall be 50% of the amount excluding the Motion Pictures Development Fund and the value-added tax, and the portion borne by the distributor out of the discounted values shall be calculated equally).