[1] Whether an order to publish a violation of law based on Article 7 (1) 2 of the Act on Fair Labeling and Advertising can be changed ex officio to an order to publish "a fact of receiving a corrective order from the Fair Trade Commission on the ground that it violated the law based on Article 7 (1) 4 of the same Act (affirmative)

[2] Whether the principle of protection of trust applies to an individual's act related to the Constitutional Court's decision of unconstitutionality (negative)

[3] The meaning of "false or exaggerated advertisement" under Article 3 (1) 1 of the Act on Fair Labeling and Advertising and the criteria for its determination

[1] In the part of the "Publication of Violation of Law" under Article 7 (1) 2 of the Act on Fair Labeling and Advertising, which is identical to the part of the "Publication of Violation of Law" under Article 27 of the Monopoly Regulation and Fair Trade Act which is declared unconstitutional by the Constitutional Court, the order of "Publication of Violation of Law" can be changed into an order of publication of "the fact that the Fair Trade Commission has received a corrective order" on the ground that the legal nature is different from the other one of the measures necessary to correct the violation.

[2] Since the Constitutional Court's decision of unconstitutionality cannot be deemed as an administrative agency having expressed a public opinion that is the subject of trust to an individual, the principle of trust protection shall not apply to an individual's act related to such decision.

[3] According to Article 3(1)1 of the Fair Labeling and Advertising Act and Article 3(1)1 of the Enforcement Decree of the same Act, false or exaggerated advertisements are advertisements that are likely to deceive consumers or mislead consumers by falsely or excessively exposing facts, and are likely to undermine fair trade order. Whether the advertisements are likely to deceive consumers or mislead consumers, should be objectively determined on the basis of the overall and extreme increase that ordinary consumers receive the advertisement in question.

[1] Article 7 (1) 2 and 4 of the Act on Fair Labeling and Advertising; Article 27 of the Monopoly Regulation and Fair Trade Act / [2] Article 45 of the Constitutional Court Act; Article 4 (2) of the Administrative Procedures Act / [3] Article 3 (1) 1 of the Act on Fair Labeling and Advertising; Article 3 (1) of the Enforcement Decree of the Act on Fair Labeling and Advertising

[1] [3] Supreme Court Decision 2002Du6170 decided Feb. 28, 2003 (Gong2003Sang, 932) / [1] Constitutional Court en banc Decision 2001HunBa43 decided Jan. 31, 2002 (HunGong65, 155)/ [3] Supreme Court Decision 96Nu5636 decided Mar. 27, 1998 (Gong198Sang, 1211), Supreme Court Decision 99Du12243 decided Dec. 12, 200 (Gong201Sang, 291) (Gong202Du8066 decided Apr. 11, 2003)

South Sea Chemical Co., Ltd. and four others (Attorneys Go Young-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Choi Han-hoon, Counsel for defendant-appellant)

Seoul High Court Decision 2001Nu9600 delivered on July 9, 2002

Each appeal is dismissed. The costs of appeal are assessed against the plaintiffs.

1. As to the first proposal

Article 3(2) of the Administrative Procedures Act and Article 2 subparag. 6 of the Enforcement Decree of the same Act excludes the application of the Administrative Procedures Act to the matters to be conducted through a resolution and decision of the Fair Trade Commission (see Supreme Court Decision 2000Du10212, May 8, 2001). Thus, Article 23 of the Administrative Procedures Act concerning the basis for the disposition of ex officio change and presentation of reasons for the disposition of this case, which was conducted through a resolution of the Fair Trade Commission, shall not apply.

The decision of the court below on the application of the legal provisions from the same purport is justified, and there is no violation of the relevant legal principles or the principle of pleading by the parties.

Therefore, this case’s ex officio change does not accept the allegation in the grounds of appeal, which is premised on the application of Article 23 of the Administrative Procedures Act to the presentation of reasons for the disposition.

2. As to the second proposal

A. In the part of the "Publication of Violation of Act" under Article 27 (1) 2 of the Monopoly Regulation and Fair Trade Act which is identical to the part of the "Publication of Violation of Act" which is declared unconstitutional by the Constitutional Court, the "Publication of Violation of Act" order based on the "Publication of Violation of Act" under Article 7 (1) 2 of the "Act" can be changed to the announcement order of "fact that has received a corrective order from the Fair Trade Commission on the ground that the legal nature of the order is different from the other "measures necessary for correcting other violation" under Article 7 (1) 4 of the "Act" (see Supreme Court Decision 2002Du6170 delivered on February 28, 2003).

The judgment of the court below to the same purport is just, and there is no illegality in violation of the legal principles as to Article 7 (1) 4 of the Act or the substantial violation of the rule of law.

We cannot accept the allegation in the grounds of appeal.

B. According to the records, this case's ex officio change disposition is a new disposition because it differs from the original order for announcement of violation of the law. However, the court below's ex officio change disposition of this case is merely a change in accordance with the purport of the Constitutional Court's decision of unconstitutionality, and it is wrong that it loses independent existence value by absorbing the contents of the original order for announcement of violation of the law, not a new disposition. However, the court below's decision on the legitimacy of this case's ex officio change disposition based on the plaintiff's request for change of purpose of claim and cause of claim as of April 2, 2002 is judged as the object of adjudication, and it is not based on the premise that the court below's disposition was permitted to change the lawsuit due to change of disposition under Article 22 of the Administrative Litigation Act, but it cannot be seen that the above request for change of purpose of claim and cause of claim was made within the period under Article 22 (2) of the Administrative Litigation Act. Thus, the court below's error affected the conclusion of the judgment.

We cannot accept the allegation in the grounds of appeal.

3. As to the third proposal

The Constitutional Court's decision of unconstitutionality cannot be deemed to have expressed a public opinion that is the subject of trust to an individual, so the principle of trust protection does not apply to an individual's act related to such decision.

The argument in the grounds of appeal is not accepted.

4. As to the fourth proposal

Pursuant to Article 3(1)1 of the Act and Article 3(1) of the Enforcement Decree of the Act, false or exaggerated advertisements refer to advertisements that are different from facts or are likely to deceive or mislead consumers by excessively spreading facts, and that are likely to undermine fair trade order. Whether advertisements are likely to deceive or mislead consumers, etc. are likely to deceive consumers, shall be objectively determined on the basis of the overall and extreme increase that consumers with common caution receive the relevant advertisements (see, e.g., Supreme Court Decisions 9Du1243, Dec. 12, 2000; 2002Du6170, Feb. 28, 2003; 2002Du8666, Apr. 11, 2003).

The court below acknowledged facts based on the records as stated in its holding, and judged that the advertisement of this case (hereinafter "the advertisement of this case") is an advertisement for farmers, so it should be objectively determined on the basis of the overall and fluoral increase that general farmers with common attention receive the advertisement of this case. Thus, although the plaintiff company actually performs soil analysis by region and small group, it is ordered to supply non-types according to the average soil of the relevant area's vision, it did not constitute an important assertion that the advertisement of this case constitutes an act of false or exaggerated advertising, regardless of its quality and crops, even though it did not constitute an important assertion that the advertisement of this case's article 4 (1) and (3) and (4) of the Act is not subject to the public announcement of the article 1 of the law because it is not an important issue of the public announcement of the article 4 of the law concerning the advertisement of this case's term "the advertisement of this case's false or exaggerated advertising" regardless of its material contents.

Examining the evidence in comparison with the evidence in the record in light of the relevant laws and the above legal principles, the fact-finding and judgment by the court below are just and there are no errors of law by misapprehending the legal principles as to Article 3 (1) 1 and Article 4 of the Act, or by misapprehending the legal principles as to Article 4 of the Act.

The argument in the grounds of appeal is not accepted.

5. As to Chapter 5

The lower court determined that the motive or actual profit to mislead consumers does not constitute the elements for establishing false or exaggerated advertisements under Article 3(1)1 of the Act, and furthermore, based on the evidence established, the lower court determined that the Plaintiff Company was actually able to make false or exaggerated advertisements in the instant advertisement.

In comparison with the evidence of the record, the fact-finding by the court below is just and there is no illegality that misleads the facts, and the judgment of the court below is just and there is no error of law as to the false or exaggerated advertisements under Article 3 (1) 1 of the Act. There is no error of law by misunderstanding the legal principles as to false or exaggerated advertisements.

The argument in the grounds of appeal is not accepted.

6. Conclusion

Therefore, each appeal by the plaintiffs is dismissed, and all costs of appeal are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)