In an administrative litigation seeking the revocation, etc. of corrective measures ordered by the Fair Trade Commission, where the pertinent corrective measures include the suspension or prohibition of a specific act against the other party of the business, whether the other party to the act is entitled to intervene in assisting the Fair Trade Commission in the administrative litigation (affirmative)

In an administrative litigation seeking revocation, etc. of corrective measures ordered by the Fair Trade Commission, where the relevant corrective measures include suspending or prohibiting a specific act against the other party of the enterpriser, the relevant enterpriser cannot continue or engage in a specific act according to the result of judgment in the relevant lawsuit, and accordingly, the other party to the act can be deemed to be determined by a judgment as the legal status of the Fair Trade Commission, and thus, the relevant administrative litigation may intervene in assisting the Fair Trade Commission.

Article 16 of the Administrative Litigation Act, Article 78 of the Civil Procedure Act

Radex Co., Ltd. (Law Firm Barun, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Order 2011Nu39389 dated April 9, 2012

The order of the court below is reversed. The supplementary participation of the Re-Appellant is permitted.

The grounds of reappeal are examined.

Even if a participant does not fall under a third party participation as stipulated in Article 16 (a) of the Administrative Litigation Act in an administrative litigation case, a participant’s participation is permitted if he/she satisfies the requirements for participation under the Civil Procedure Act, and its nature is considered as a co-litigation participation (see, e.g., Supreme Court Decision 2011Du13729, Mar. 28, 2013). Intervention under the Civil Procedure Act refers to a person who has an interest in the outcome of a lawsuit. Here, an interest refers to a legal interest, and an interest refers to a case in which res judicata effect or executory power of the judgment of the relevant lawsuit is granted, or where the legal status of a person who intends to participate in the lawsuit is determined on the premise of the judgment (see, e.g., Supreme Court Decision 2006Da69653, Feb. 8, 207).

In an administrative litigation seeking revocation, etc. of corrective measures ordered by the Fair Trade Commission, where the relevant corrective measures include suspending or prohibiting a specific act against the other party of the enterpriser, the relevant enterpriser cannot continue or engage in a specific act according to the result of judgment in the relevant lawsuit, and accordingly, the other party to the act can be deemed to be determined by a judgment as the legal status of the Fair Trade Commission, and thus, the relevant administrative litigation may intervene in assisting the Fair Trade Commission.

According to the records, on the ground that the Korea Aerospace Industry Co., Ltd. (hereinafter “Korea Aerospace”), among the unfair trade practices prohibited under the Monopoly Regulation and Fair Trade Act, has refused to supply satellite parts to the re-appellant, the Fair Trade Commission filed a lawsuit against the Korea Aviation Agency seeking revocation of the above corrective measures, etc., and the Korea Aerospace filed a lawsuit against the Fair Trade Commission during the lawsuit, against the re-appellant. The court below rendered a favorable judgment against the Korean aviation by proceeding the pleading without participating the re-appellant, and the appeal by the Fair Trade Commission is pending in the lawsuit.

In light of these facts in light of the above legal principles, the re-appellant's application for participation in the case of this case is lawful, since the re-appellant is the other party of transaction refusal prohibited by a corrective action, which is subject to the administrative litigation, and the legal status is determined by the judgment

Therefore, the order of the court below is reversed without examining the remaining grounds for reappeal, and this case is sufficient to directly judge this case, and it is decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)