[1] Whether a disciplinary measure may be imposed even if there is no intention or negligence on the violator of the administrative law (affirmative in principle)

[2] In a case where Gap corporation, which is an online open market business entity, established a distribution advertisement of "" on the early screen of the portal site and advertised Slurier, but the actual consumer should choose the part indicated as "+13,900" through the option order in order to purchase the slurier and pay 21,800 won on the order and settlement screen, and the Fair Trade Commission issued a corrective order as to the fact of inconsistency between the actual product details and the distribution advertisement, the case affirming the judgment below that the "slurier advertisement" constitutes a false advertisement under Article 21 (1) 1 of the Act on the Consumer Protection in Electronic Commerce, Etc.

[3] In a case where Gap corporation, an online open market business entity, set up an advertisement of "" on the early screen of the portal site, and the sales business entity deleted the above 9,900 foot "b" in the product list and neglected to display advertising products so that consumers can no longer search the products, the case affirming the conclusion of the court below that the Fair Trade Commission revoked the publication order on the ground that it is difficult to deem that there is a justifiable reason not to cause negligence in neglecting its duty of care due to the act of inducing customers due to false advertisements, but it cannot be deemed that Gap corporation's failure to perform its duty of care due to the act of soliciting customers, and that it does not have satisfied the requirements of the publication order

[1] Sanction against violation of administrative laws is a sanction against the objective fact of violation of administrative laws in order to achieve administrative purposes. Thus, it may be imposed even if the violator has no intention or negligence, barring special circumstances, such as where there is a circumstance that the violator could not be aware of his/her duty, or where there is a reason that it would be unreasonable for him/her to expect him/her to fulfill his/her duty, or where there is a reason that it would be unreasonable for him/her to expect him/her to fulfill his/her duty.

[2] In a case where Gap corporation, an online open market business entity, registered two brands different from each other on the initial screen of the portal site in a way of sale, and advertised 7,900 won, which is the basic price of other brand slots, by installing a distribution advertisement of "", but the part indicated as "+13,900" through the options in order for consumers to purchase the e-commerceer, the case affirming the judgment below holding that it did not constitute a false advertisement under Article 21 (1) 1 of the Act on the Consumer Protection in the Electronic Commerce, etc., on the ground that it did not necessarily mean that it did not constitute a false advertisement under Article 21 (1) 1 of the Act on the Consumer Protection in the Electronic Commerce, Etc., and that it did not constitute a false advertisement under Article 21 (1) 1 of the Act on the ground that it did not constitute a false advertisement under Article 21 of the Act on the Consumer Protection in the Electronic Commerce, on the ground that it did not necessarily mean that it did not constitute a false advertisement under Article 21 of the Act.

[3] In a case where Gap corporation, an online open market business entity, set up an advertisement of "" on the initial screen of the portal site, and the tenant company deleted the above 9,900 foot goods on the product list through the sales management system, and the consumer characters the above 9,90 foot goods on the product list, the case affirming the court below's order of publication and order of publication on the ground that Gap company's act of advertising is false or exaggerated to inform consumers of the fact that the above 9,90 foot goods can no longer be searched on the product list, and the above 9,90 foot "the above 9,90 foot goods" can no longer be seen as being subject to disclosure order or order of publication on the ground that Gap company's act of attracting or trading the products constitutes an act of inducing or soliciting customers, etc., and the court below's conclusion that Gap company's act of removing the above 9,500 foot goods can no longer be seen as being legitimate since it did not have any reason to recognize that Gap company's act of neglecting its disclosure of advertising products."

[1] Article 32(1) and (2) of the Act on the Consumer Protection in the Electronic Commerce Transactions, Etc. / [2] Articles 21(1)1 and 32(1) and (2) of the Act on the Consumer Protection in the Electronic Commerce Transactions, Etc. / [3] Articles 21(1)1 and 32(1) and (2) of the Act on the Consumer Protection in the Electronic Commerce Transactions, Etc.

[1] Supreme Court Decision 79Nu251 Decided May 13, 1980 (Gong1980, 12855) Supreme Court Decision 2009Du4272 Decided June 11, 2009 (Gong2009Ha, 1139)

Lee Bea Korea Co., Ltd. (formerly: Lee & Lee LLC, etc., Counsel for the plaintiff-appellant-appellee)

Fair Trade Commission (Attorney Park Jong-chul, Counsel for defendant-appellant)

Seoul High Court Decision 2009Nu27642 decided October 7, 2010

All appeals are dismissed. The costs of appeal are assessed against each party.

1. The plaintiff's grounds of appeal are examined.

A. As to the first and second points

Article 21(1) of the Act on the Consumer Protection in Electronic Commerce, Etc. (hereinafter “Electronic Commerce Act”) provides that “any business operator or mail order distributor who conducts electronic commerce shall not engage in any act falling under any of the following subparagraphs.” As one of the prohibited acts, Article 21(1)1 provides that “an act of notifying false or exaggerated facts or inducing or trading consumers by using deceptive means, or interfering with cancellation, etc. of order or termination of contract.” Article 32(1) and (2) of the Electronic Commerce Act provides that “an act of interfering with cancellation, etc. of order or termination of contract.” Article 32(1) and (2) of the same Act provides that “the relevant business operator shall be prohibited from committing any act falling under the prohibited act as described above,” “suspension of the relevant offense,” “performance of the duty stipulated in this

On the other hand, sanctions against violations of administrative laws are sanctions against the objective facts of violation of administrative laws and regulations to achieve administrative purposes. Thus, it may be imposed even if the violator does not know his/her duty, barring special circumstances, such as where there are circumstances that make it unreasonable for him/her to be aware of his/her duty, or where there are circumstances that make it unreasonable for him/her to expect the fulfillment of his/her duty, etc., or where there are justifiable grounds that make it unreasonable for him/her to cause a failure to perform his/her duty, etc. (see, e.g., Supreme Court Decisions 79Nu251, May 13, 1980; 2009Du4272, Jun. 11, 2009).

In full view of the adopted evidence, the lower court acknowledged that the Plaintiff: (a) made an advertisement to be placed on the portal site NAV on the basis of the product detailed screen produced by the shop occupants on the rooftop site; (b) made an advertisement to be placed on the portal site NAV; (c) made the advertisement on the basis of the content of the Plaintiff’s protocol; and (d) traded the advertisement on the NAV by inserting it on the basis of the Plaintiff’s protocol; and (b) made the advertisement on the basis of the method of posting it on the NAV; (c) the Plaintiff, the shop occupants, registered by the method of sale the so-called “Nak Dol Dol Dol” and “Li Dol Dol Dol Dol” and the product detailed on the product detailed screen that the Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol 2 Dol Dol Dol Dol Dol Dol.

On the premise of such fact-finding, the lower court determined that the advertisement “” ought to be deemed to be an act of inducing consumers by notifying false facts from the beginning, and merely because the Plaintiff did not directly produce the aforementioned distribution advertisement, it is difficult to deem that the content of the advertisement was unaware of the falsity or that it was justified for the Plaintiff to make a false advertisement, and that the business operator does not necessarily have a subjective perception of the act in making false or exaggerated advertisements as prescribed by the Electronic Commerce Act.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the necessity of awareness of false facts in the act of false advertisement under the Electronic Commerce Act, or the violation or negligence of duty, as otherwise alleged in the ground of appeal.

B. On the third ground for appeal

As seen earlier, the lower court determined that the instant corrective order was lawful, on the ground that, as long as the distribution of “” constitutes a false advertisement as stipulated in Article 21(1)1 of the Electronic Commerce Act, even if excluding the part of “spacker advertisement” as seen earlier, the instant corrective order was lawful.

In light of the relevant statutes and records, the court below is just to determine that the corrective order was lawful even if the corrective order of this case was excluded from the part on the distribution advertisement of "" on the premise that it is not possible to separate it, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the scope

2. The defendant's grounds of appeal are examined.

A. On the second ground for appeal

According to Article 32(1)2 of the Electronic Commerce Act, where a person commits an act falling under Article 21(1)1 of the same Act, he/she may order the relevant business operator to take corrective measures, and Article 32(2)3 of the same Act provides that “public announcement of the fact that he/she has received corrective measures” is one of the corrective measures. Meanwhile, Article 32(3) of the Electronic Commerce Act delegates matters necessary for public announcement of the fact that he/she has received corrective measures under Article 32(2)3 of the same Act, and upon such delegation, Article 33 of the Enforcement Decree of the Act on the Consumer Protection in the Electronic Commerce Transactions, Etc. provides that the Fair Trade Commission shall determine the details and frequency of publication by taking into account the content and degree of the act of violation, the period and frequency of the act of violation, the scope and degree of consumer damage caused by the act of violation.

The lower court determined as follows based on its adopted evidence that: (a) the Plaintiff’s “ ” advertisement was merely published for about five days in NAV by finding out that it does not coincide with the actual product content and voluntarily suspending advertising; (b) the display event of NAV was a single-time event limited to the name of 2008; and (c) the progress of events and the sales of products are all terminated on August 2008; and (d) the Plaintiff improved the previous method that entrusts the advertising agency with the planning and production of the distribution advertisement around September 2008 to execute the advertisement after obtaining confirmation from the Plaintiff; and (e) on January 2009, the lower court determined that it is difficult to readily conclude that the Plaintiff’s act of misunderstanding the consumer’s options in the event of any increase in staff to take exclusive charge of conducting regular monitoring of online workers inside the company, and that it does not necessarily constitute an act of misunderstanding the consumer’s options in light of the fact that it is difficult to determine the possibility of misunderstanding the content of the advertisement of this case.

In light of relevant Acts and subordinate statutes and the records, the judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to the requirements for publication order.

B. On the first ground for appeal

(1) Since an appeal is seeking revocation or alteration of a judgment disadvantageous to himself/herself in favor of himself/herself, the appeal against the original judgment in full winning the appeal shall not be permitted as there is no benefit in filing the appeal (see, e.g., Supreme Court Decisions 93Nu8108, Jan. 11, 1994; 98Du5903, Sept. 8, 2000). Whether the judgment is disadvantageous to the appellant shall, in principle, be determined on the basis of the text of the judgment. Therefore, if an appellant’s assertion was accepted and won, there is no benefit in filing the appeal even if there is an appeal (see, e.g., Supreme Court Decisions 86Nu233, Apr. 14, 1987; 2009Du355, Jun. 30, 2011).

According to the records, since the defendant won all of the plaintiff's claim seeking cancellation of the corrective order at the court below, the appeal on the part that the corrective order against "" was unlawful is disputing the grounds for the judgment, and there is no interest in the appeal. However, as to the plaintiff's claim seeking cancellation of the disclosure order, it constitutes the requirement for the disclosure order and the plaintiff's claim seeking cancellation of the disclosure order is against the defendant, the defendant has a interest in seeking cancellation of the judgment of the court below on the part of "", on the ground of the misapprehension of the legal principles as to "justifiable cause that does not cause any violation or neglect of duty" in the act of false advertisement under the Electronic Commerce Act, on the premise that

(2) The lower court determined that the Plaintiff’s act of removing 9,900 foot " " "" was no longer known from 900,000 won to 9,90 won for the remaining quantity after importing 1,00 so-called "Nakic scam," which is a store tenant, and that the Plaintiff’s act of removing 9,900 foot " from 90,000 won to 90,000 won was no longer known from 90,000 won for the first left-hand side of the NAV during the period from August 22, 2008, and that the Plaintiff’s act of removing 9,900 foot scam from 90,000 won to 90,000 won was no longer known from 90,000 won for the above product list to 90,000 won.

First, we cannot accept the judgment of the court below in the following respects.

In other words, since the occupant company's inventory of advertising products is often likely to occur frequently, prior to advertising on the portal site, where it is not sufficient to verify whether the occupant company has secured sufficient inventory to meet the demand that can reasonably expect for the advertising products prior to advertising, the Plaintiff, who operates the online open market, has the obligation to inform consumers by clearly and appropriately specifying the circumstances that the products are not included in the advertising object or are restricted in the case of inclusion in the advertising object, and to take appropriate measures such as excluding the subject of advertising in the case of actual exhaustion of inventory. Nevertheless, the Plaintiff failed to take such measures as above in advertising the instant “,” and as a result, the occupant company failed to delete the list of products at its discretion on the portal site or on the product information screen without any notification to the Plaintiff, so it is difficult to view that the Plaintiff's failure to search the advertising products is attributable to the Plaintiff's neglect of the duty to encourage the customer to display the advertising products as it is, and thus, it is difficult to deem the Plaintiff's neglect of any justifiable reason.

However, in light of the relevant laws and records regarding the order for disclosure as seen earlier, the advertising of this case is merely published for five days in NAV from August 20, 2008 to August 24, 2008. The Plaintiff becomes aware of the fact that the Plaintiff cannot find the above 9,900 foot "I" in NAV, etc. immediately after immediately became aware of the fact that the Plaintiff cannot find the above 9,900 foot "I" in NAV, etc., the Plaintiff’s products can not be subject to prote advertising, and even if the inventory among the prote advertising, it is difficult to view that the occupant company’s products could not be deleted at will from the list of products without the Plaintiff’s approval. The advertising of this case changed the system so that the occupant company could not be removed from the list of products, and it is difficult to view that the above advertising act satisfies the requirements for publication due to consumer misunderstanding effects due to the short term advertising.

The judgment of the court below related to whether the act of false advertising under the Electronic Commerce Act constitutes an act of false advertising, and there is a justifiable reason for not being able to commit an act of violation or neglect of duty. However, the judgment of the court below that revoked an order of disclosure of the above advertising act is justifiable. Thus, the judgment of the court below is not erroneous in the misapprehension of legal principles as to the justifiable reason that cannot be caused by an act of false advertising under the Electronic Commerce Act, which affected the conclusion of the judgment.

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)