[1] Whether a sales planning team belonging to a newspaper company's agency's act of arranging and acting for the purchase of free gifts with the consent of the director of the sales bureau only without the representative director's specific instruction and approval can be deemed as a newspaper company's act (affirmative)

[2] Criteria to determine whether a manufacturing company under Article 20 of the Public Notice of Unfair Trade Practices and Criteria for Provision of Gift Items directly or indirectly participated in an event of an agency's offer of gift certificates

[3] The case reversing the judgment below which held otherwise on the ground that a newspaper company indirectly participated in an event to offer free gifts to the country, even though it decided whether to purchase free gifts, quantity, etc. in light of the fact that the newspaper company permitted the provision of free gifts to the country and led the activities such as arranging and acting for the purchase of free gifts and the procedure for paying the purchase price

[4] Requirements for the act of selling members under Article 5 subparagraph 2 of the Public Notice of Types of and Criteria for Unfair Trade Practices

[5] The case holding that where the newspaper company did not disadvantage any officer or employee with poor sales performance and the officer or employee participating in the plan for expansion of the former reader was merely 35.6% of the company's loss, the act of expanding the number of newspaper sales by the newspaper company to the officer or employee does not constitute the act of selling the company's membership under

[1] Generally, the number of copies published in a newspaper is a measure to measure the influence of the newspaper, and the number of copies increased by such a factor as to determine the volume of advertising attraction is the basis of the management policy of the publishing company. Considering the circumstances such as the acquisition of a considerable number of subscription people by adopting the resale system that only sells the newspaper issued by the publishing company, and maintaining the management of the branch, as well as the maintenance of the branch, and thus, not seeking management assistance for the sales store, the act of arranging and acting for the purchase of free gifts to the branch office of the newspaper company in question is conducted for the benefit of the newspaper company as part of the sales expansion of the newspaper issued by the newspaper company to the branch office in response to the sales competition with the competing newspaper company and the assistance of the branch office in the management of the newspaper company. Thus, even if the representative director's consent was obtained without specific instruction and permission, it shall be deemed an act of the newspaper company.

[2] Whether a manufacturing company directly or indirectly involved in an event for providing free gifts by an agency, etc. under Article 20 of the Fair Trade Commission’s Notice of Types of Unfair Trade Practices and Criteria for Providing free gifts (Fair Trade Commission Notice No. 1993-12, Jun. 17, 1993) should be determined on the basis of whether the manufacturing company ordered an agency, etc. to provide free gifts, etc., by comprehensively taking into account all the circumstances such as the background leading up to the event for providing free gifts, the degree of participating in the planning and implementation of the event for providing free gifts, and the person bearing the cost of purchasing free gifts, etc.

[3] The case reversing the judgment of the court below which held otherwise on the ground that, in light of the fact that the newspaper company's act of providing free gifts to the country and the fact that the newspaper company led to the activities such as arranging and acting for the purchase of free gifts, and the procedure for paying the purchase price, etc., the newspaper company's act of promoting and promoting the provision of free gifts to the country and exercising substantial influence on the events of providing free gifts to the country, even if there are circumstances in which the newspaper company has determined whether to pay free gifts to the country and to purchase free gifts, etc., the newspaper company was indirectly involved in the events of offering free gifts to the country of the country of the destination, on the ground that it was at least indirectly involved in the free gifts of the country of the country

[4] Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996) provides that "an act of compelling an executive officer or employee of his/her company to purchase goods or services of his/her company or of his/her affiliated company" under Article 5 (2) 2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996) provides that "an act of compelling an executive officer or employee of his/her company to purchase goods or services of his/her company or of his/her affiliated company". To constitute an employee sales act as provided in the above standard announcement, an act of compelling an executive officer or employee to purchase his/her own goods of his/her company or allocating the sales volume of his/her goods of his/her company with the same degree of coercion and allocating them to the sales volume of goods of his/her company, and it is insufficient to encourage an executive officer or employee to purchase goods of his/her company.

[5] The case holding that the act of expanding the number of newspapers sales by a newspaper company to an officer or employee of the newspaper company does not constitute the act of sales by employees under Article 193-20 of the Fair Trade Commission (Notice No. 1993-20 of Nov. 19, 1993) in light of the fact that the newspaper company did not disadvantage any officer or employee with poor sales performance in any form and that the officer or employee participating in the plan to expand the company's subscription was merely 35.6% of the company

[1] Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996); Article 20 of the former Public Notice of Type of and Criteria for Provision of Free Trade (amended by Act No. 1993-12 of Jun. 17, 1993) / [2] Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), Article 20 of the former Public Notice of 30 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 1993-12 of Jun. 17, 1993); Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996); Article 29 of the former Public Notice of 9-13 of the Fair Trade Commission Act (amended by Act No. 1935 of Dec. 19, 193

[2] [2] [3] [5] Supreme Court Decision 96Nu18489 delivered on March 27, 1998 (Gong1998Sang, 1216) / [2] Supreme Court Decision 96Nu11280 delivered on March 24, 1998 (the same purport)

Han Han-chul, Inc.

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

Seoul High Court Decision 95Gu30798 delivered on July 11, 1997

The part of the judgment of the court below regarding the provision of free gifts is reversed and remanded to the Seoul High Court. The defendant's remaining appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. According to the reasoning of the judgment below, in this case where the plaintiff's branch provides free gifts purchased by the plaintiff's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member.

B. Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996; hereinafter the same) provides that "an act of offering premiums by an agency, etc. that sells only products of a certain manufacturing company is an act of offering premiums by the relevant manufacturing company directly or indirectly involved in an event of offering premiums by an agency, etc.," and Article 20 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 199) provides that "an act of offering premiums by the relevant manufacturing company shall be deemed an act of offering premiums by the relevant manufacturing company."

(1) First, we examine whether the act of arranging and acting for the purchase of free gifts by the sales planning team of the Plaintiff affiliated with the Plaintiff can be seen as the Plaintiff’s act.

In general, the number of copies published in a newspaper is a measure to measure the influence of the newspaper and an increase in its number of copies, such as determining the volume of advertising attraction, are the basis for the management policy of the publishing company. In light of the circumstances such as the acquisition of a considerable number of subscriptions by adopting the resale system that allows the branch of the publishing company to sell only the newspaper issued by it, and maintaining the management of the branch, and thus, it is difficult to provide management assistance to the branch. Thus, the act of arranging and acting for the purchase of one gift to the branch of the Plaintiff in this case for the Plaintiff’s interest as part of the expansion of the sales of the newspaper issued by the Plaintiff in response to the competition with the branch of the competition company and the aid of the management of the branch of the newspaper. Thus, even if the representative director’s consent is obtained without obtaining specific instruction and permission, it shall be deemed the act of the Plaintiff.

(2) Next, we examine whether the Plaintiff may be deemed to have participated in the event of providing free gifts in the country of destination.

Whether a manufacturer, as provided in Article 20, directly or indirectly involved in an event providing free gifts by an agency, etc. shall be determined on the basis of whether a manufacturer, etc. has exercised substantial influence over an event providing free gifts by giving the manufacturer, etc., by comprehensively taking into account all the circumstances such as the background leading up to the event providing free gifts, the degree of participation in the planning and implementation of the event providing free gifts, and the person bearing the cost of purchasing free gifts, etc.

According to the records (in particular, No. 1, No. 2-1 of No. 1, No. 2-1 of No. 1, the plaintiff continued to seek the advice on the intermediation of the purchase of free gifts for new readers from the branch countries that caused a crisis in the competition with the competitive newspaper located in the day, and to respond to such sales competition at the level of the headquarters, and the branch countries that wish to purchase the free gifts at a low price at the level of the headquarters are to supply the free gifts to the branch countries. Accordingly, it can be recognized that the 9 branch countries at the time of original adjudication applied for the free gifts and provide the free gifts. Accordingly, even if the plaintiff, a newspaper publisher, indirectly, determined to allow the provision of free gifts to the branch countries, the plaintiff is taking into account the fact that the payment procedure of free gifts was conducted by the branch countries, and that the plaintiff led the purchase of free gifts at a low price in the central office, and thus, the plaintiff has been taking into account the influence of the country's use of free gifts.

(3) Nevertheless, the court below held that the Plaintiff did not participate in the event of the offer of gift gift in this case. Thus, the court below erred in the misapprehension of legal principles as to the provision of gift gift. There is a ground to point this out.

C. Furthermore, the lower court determined that the provision of this case’s gift does not exceed the limit of the value determined in the notice of gift payment under Article 12(1)3 of the Notice of Gift Payment, on the premise that the instant gift is provided on the premise that the subscription period of a newspaper is not less than one year or that it is not available at the market (the transaction price of the non-marketed gift shall be calculated by adding 25% to the purchase price pursuant to Article 12(1)3 of the Notice of Gift Payment, but it is difficult to conclude that the offer of this case’s gift exceeds the limit of the price determined in the notice of gift payment. However, in light of the evidence No. 2-1 through 5, No. 12-13, etc., unless the lower court rejected the use as evidence, it can be sufficiently recognized that the Plaintiff purchased the gift product at a price lower than its market price from the association of idea products. Thus, the lower court should have determined whether the gift product was sold at the market price calculated by calculating the transaction price of this case’s gift products.

Nevertheless, the court below judged that it is difficult for the court below to consider that the gift premiums in this case exceeded the limit of the value set in the notice of free gifts. Thus, the court below erred in the misapprehension of facts against the rules of evidence, etc.

2. On the second ground for appeal

Article 5 (2) 2 of the Monopoly Regulation and Fair Trade Act provides that "the act of compelling an executive officer or employee of his/her company or its affiliated company to purchase goods or services from his/her company or its affiliated company" which provides the types and criteria of unfair trade practices under the latter part of Article 23 (1) 3 of the Monopoly Regulation and Fair Trade Act (the "Fair Trade Commission Notice No. 1993-20 of November 19, 193" hereinafter). For the act of selling employees under the above standard public notice, it is insufficient to urge an executive officer or employee of his/her company to purchase goods or services from his/her company or assign the sales volume of his/her own goods to the extent that it can be identical to that of his/her own goods and allocates sales volume of his/her own goods and fails to sell them, the act of compelling an executive officer or employee to purchase the goods and encourage him/her to endeavor to expand the purchase volume of his/her goods.

In the same purport, the court below is justified in holding that the act of expanding the number of newspapers sales by the plaintiff's executives and employees does not constitute the act of selling employees as provided in the standard public notice, in light of the following circumstances: (a) the plaintiff's act of expanding the number of newspapers sales by the plaintiff's executives and employees is not at any disadvantage in any form against the executives and employees with poor sales performance, and the executives and employees participating in the above plan of expanding the number of newspapers is merely 35.6%

3. Therefore, the part of the judgment of the court below as to the provision of free gifts is reversed, and that part of the case is remanded to the court below. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent

Justices Final Young-young (Presiding Justice)