(영문) 서울중앙지방법원 2016. 6. 3. 선고 2016노843 판결

Of the facts charged in this case, each of the indictments that the defendant had each affiliated company SO listed in attached Table 2. The judgment of the court below provide disadvantage by taking advantage of the transaction status is dismissed.

All appeals by prosecutors and defendants against convictions among the judgment of the court below are dismissed.

Reasons

1. Summary of grounds for appeal;

(a) A prosecutor;

(1) misunderstanding of facts or misunderstanding of legal principles concerning acquitted portion

Article 23(1) latter part of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides that “The act of having affiliated companies or other business entities conduct unfair trade practices” shall be calculated from May 1, 2010 on which the act of giving disadvantage by suspending the application of the changed unit price to the Defendant’s affiliated companies as well as the case of SO under the former part of Article 23(1) of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) is completed by realizing the constituent act by committing an unfair trade practice, like the legal doctrine of a teacher’s offense under the Criminal Act, and the act of causing affiliated companies to terminate the unfair trade practice. Therefore, the judgment of the court of first instance is erroneous in the misapprehension of legal principles or the judgment of the court of first instance on the charge of acquittal on the premise that the Defendant’s order to reduce the unit price to SO on March 30, 2009.

2) Unreasonable sentencing

The punishment of a fine of 30 million won in the first instance (the fine of 30 million won) is too unhued and unjust.

B. Defendant

A. Legal principles as to the application of the Fair Trade Act

This case is essentially a pure civil dispute disputing whether A/S unit price reduction act constitutes a legitimate exercise of contractual authority under the contract, and the Fair Trade Commission’s guidelines on the examination of unfair trade practices under the Fair Trade Act provide that “where there is a dispute over the interpretation of contract and related Acts and subordinate statutes in relation to the reversion of rights and duties and the obligation relationship between the parties, etc.,” it cannot be deemed to be subject to the regulation on abuse of trade position under the Fair Trade Act, in light of the purport that the defendant may change or add the type of entrusted duties when he/she needs to change or adjust due to the commencement of new services or the change of business policies.”

B. misunderstanding of facts and misapprehension of legal principles as to whether the act of disadvantageous provision was established

The defendant's act of reducing fees does not constitute an act of abusing transactional position and providing disadvantages, in light of the fact that the defendant newly established and paid subsidies, etc. to the customer center instead of reducing the fees for the customer center, thereby compensating the customer center for most damages caused by the reduction of fees, the defendant consulted with the customer center prior to the reduction of fees, the defendant did not intend or purpose to put the customer center at a disadvantage, and the adjusted fees did not fall short in light of the degree of competition.

C. Unreasonable sentencing

The punishment of the first instance is too unreasonable.

2. Ex officio determination of acquittal in the judgment of the first instance;

A. Provisions of the Fair Trade Act

1) Article 23(1)

No enterpriser shall engage in any act which falls under any of the following subparagraphs, and which is likely to impede fair trade (hereinafter referred to as "unfair trade practices"), or cause his/her affiliated company or other enterprisers to engage in such conduct:

4. Trading with a certain transacting partner by unfairly taking advantage of his/her position in trade;

(ii) Article 67;

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding 150 million won:

2. A person who has conducted unfair trade practices in violation of the provisions of Article 23 (1) (excluding subparagraph 7);

(b) the existence of criminal punishment provisions for enterprisers who cause affiliated companies to conduct unfair trade practices under Article 23(1)4.

Article 23(1) of the Fair Trade Act prohibits a business entity from engaging in any unfair trade practice directly by the business entity, and ② an affiliated company or other business entity to engage in any unfair trade practice. However, Article 67 Subparag. 2 of the Fair Trade Act, which is a penal provision on such a penal provision, provides that only a person who has engaged in any unfair trade practice in violation of each subparagraph of Article 23(1) of the Fair Trade Act, is subject to criminal punishment, and does not have any provision regarding “a business entity that has caused affiliated companies or other business entities to engage in such conduct.” Therefore, “a business entity’s act of causing affiliated companies or other business entities to engage in any unfair trade practice” cannot be deemed subject to criminal punishment, apart from the fact that it constitutes a prohibited act under the Fair Trade Act and may be subject to other sanctions prescribed by the Fair Trade Act, such as penalty surcharges, etc. In light of the following circumstances, it is evident that the business entity’s “an act of causing affiliated companies to engage in any unfair trade practice under Article 23(1)4.

A) The latter part of Article 23(1) of the Fair Trade Act, apart from the fact that an enterpriser directly engages in an unfair trade practice, prohibits “a business entity from engaging in an unfair trade practice.” Therefore, the extended interpretation of Article 67 of the Fair Trade Act to include “a person who engages in an unfair trade practice in violation of any subparagraph of Article 23(1) of the Fair Trade Act (excluding subparagraph 7)” as “a person who causes an affiliated company or another business entity to engage in an unfair trade practice,” is not permissible as it goes against the prohibition of analogical interpretation.

B) Article 19(1) of the Fair Trade Act also provides that “(i) a business entity shall not engage in, or cause another business entity to engage in, an unfair collaborative act.” However, Article 66(1)9 of the Fair Trade Act, which is a penal provision on such collaborative act, punishs “a person who engages in, or causes another business entity to engage in, an unfair collaborative act in violation of the provisions of Article 19(1).” As to the unfair collaborative act, unlike Article 67 Subparag. 2 of the Fair Trade Act, clearly distinguishings “a business entity” from “a business entity that causes another business entity to engage in, or engage in, an unfair collaborative act.” As to the unfair collaborative act, Article 66(1)9

C) Article 23(1)7 of the Fair Trade Act prohibits an enterpriser from unfairly supporting a specially related person or other company, and ② an affiliated company or other enterprisers from engaging in such conduct. However, Article 66(1)9-2 of the Fair Trade Act, which is a penal provision on such punishment, punishs “a person who violates Article 23(1)7,” and also clearly indicates that the said prohibited act is subject to criminal punishment by an affiliated company or other enterprisers.

D) Article 26(1) of the Fair Trade Act prohibits an enterpriser from engaging in, or aiding and abetting an enterpriser to, engage in any unfair trade (paragraphs 1 through 3) except for the prohibition of a certain act by an enterpriser’s organization. Article 67 subparag. 3 of the Fair Trade Act, which is a penal provision for such prohibition, provides that “a person who violates the provisions of Article 26(1)2 through 5” is subject to punishment, and also stipulates that a person who causes or aids and abets an enterpriser to engage in, or engage in, any unfair trade, against an enterpriser, is subject to criminal punishment.

E) The latter part of Article 23(1) of the Fair Trade Act was added through the amendment on December 31, 1986, and the reason for the proposal is that a business entity’s act of unfair trade can be “regulation” even in a case where it causes its affiliated company or other business entity to engage in unfair trade (see, e.g., Bill No. 120357 of the National Assembly’s draft information system). Meanwhile, Article 67 subparag. 2 of the Fair Trade Act, which is a penal provision for unfair trade, is subject to criminal punishment only for “the person who engaged in unfair trade” since it was enacted differently from Article 66(1)9, which is the penal provision for unfair trade. Thus, it is difficult to view that the amendment of Article 23(1) latter part of the Fair Trade Act, which was amended on December 31, 1986, was intended to impose criminal punishment or omitted in the legislative process (or, many foreign legislation cases are not provided for unfair trade).

Therefore, among the facts charged in this case, the part corresponding to the acquittal of the judgment of the court of first instance (the part that each affiliate SO listed in attached Table 2, the judgment of the court of first instance provides disadvantage to the customer center, which is the opposite contractual party, by unfairly taking advantage of transaction status) constitutes a case where it is evident that the facts alone do not constitute a crime even though it is judged on the stated facts itself. Ultimately, this part of the facts charged constitutes "when the facts recorded in the indictment do not constitute a crime even if they are true," under Article 328 (1) 4 of the Criminal Procedure Act, and thus, this part of the indictment must be dismissed (see Supreme Court Order 7Mo56, Sept. 16, 197; Supreme Court Order 89Da28, Jul. 7, 1989, etc.). Without examining the prosecutor's appeal on this part, the part of the judgment of the court of first instance among the judgment of first instance should be reversed.

3. Determination on the grounds for appeal by the defendant and prosecutor regarding conviction in the judgment of the first instance

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) Whether the Fair Trade Act is applicable

The review guidelines made by the Fair Trade Commission to operate the provisions of Article 23(1) of the Fair Trade Act are not in accordance with the delegation of statutes, but merely an internal work guidelines of the Fair Trade Commission established to establish the review guidelines related to the operation of the prohibition of unfair trade practices (see Supreme Court Decision 2001Du6364, Sept. 24, 2004). Therefore, even if a transaction partner has a transactional position, the said review guidelines do not immediately mean that the Fair Trade Act is excluded from the application of the Fair Trade Act in cases where disputes arise in the interpretation of the contract and the contents of relevant Acts and subordinate statutes in relation to the reversion of rights and obligations, the relationship of claims, etc. between the parties, even if they have a transactional position, and if an enterpriser might unfairly

In addition, the Fair Trade Commission made it clear that the case is subject to the Fair Trade Act by imposing penalty on the defendant with regard to the case, and as seen later, this court can recognize the fact that the defendant provided disadvantage to the other party by unfairly taking advantage of his trade position, and thus, this part of the argument that the case is excluded from the application of the Fair Trade Act

2) Whether an act constitutes an act of unfairly taking advantage of a transaction position

In the first instance court’s assertion identical to this part of the grounds for appeal, the first instance court rejected the Defendant’s assertion by stating in detail the Defendant’s assertion and judgment on “the act of abuse of trade position in 2. Giving disadvantage as an act of abuse of trade position.” According to the evidence duly admitted and examined by the first instance court, all circumstances in the first instance court may be recognized. In addition to the following circumstances recognized by the appellate court based on the above evidence, the Defendant unilaterally notified the customer center of the reduction of the unit price during the contract period by taking advantage of the superior position in the transaction, and such an act constitutes unfair trade practices beyond normal transaction practices. Accordingly, the first instance court’s determination is justifiable, and there is no error of law by misunderstanding the facts or by misunderstanding the legal principles as alleged by the Defendant, which affected the conclusion of the judgment. The Defendant’s allegation in this part is not acceptable.

A) It cannot be deemed that the establishment of a subsidy and the payment to the customer center to compensate for the loss of the customer center caused by the ASS reduction measure.

(1) “Operational expenses for customer centers’ assessment” means the payment of operating expenses by evaluating the technical capacity and business capacity of the customer center (i.e., investigation records 122 pages); and the payment for the purpose of enhancing the technical capacity and business capacity of the customer center; and “customers’ promotion expenses” also means the payment of KRW 2 million per additional person when recruiting more than a certain number of human resources at the customer center, and cannot be deemed to be aimed at compensating for losses arising from the reduction of the unit price in terms of the pretext or purport of the payment.

② In addition, each of the above subsidies is limited to those paid for a limited period from May 2009 to December 2009, and the Defendant abolished the settlement support already paid while establishing the above subsidies.

(3) In cases of expenses for activation of customer centers, where new personnel are employed, expenses for activation of customer centers shall be paid for a certain period (three to six months) only, and expenses for education and training for maintaining new personnel, four-class insurance, etc. shall remain at the expense of the customer center.

④ If the Defendant newly established and paid each subsidy instead of reducing the unit price of the fee, it appears that the Defendant would have sufficiently withdrawn the measures to reduce the unit price without any need to pay the above additional costs. In this regard, it is difficult to deem that each of the above subsidies was aimed at compensating for the reduction of the AS fee.

B) The Defendant cannot be deemed to have consulted in advance with the customer center about the reduction of the unit price.

① The Defendant Company’s head of ○○○○ Team stated to the effect that Nonindicted 1 did not seek a separate customer center’s opinion by formulating a plan to reduce the unit price by taking into account the level of the competitor’s fee into account. Nonindicted 2 also stated to the effect that the customer center’s contact with Nonindicted 2 regarding the reduction of the unit price on March 30, 2009 (hereinafter “the contact with March 30, 2009”) is a document of notification or instruction to the customer center.

② The data on the fact that the Defendant sought prior opinion from the customer center prior to the reduction of the unit price.

③ In the notice of contact on March 30, 2009, Nonindicted 3 of the Defendant Company’s head of the ○○○○○○○○○ Office mentioned the head of the Gyeonggi-do Customer Center as to the reduction of the fee. However, in full view of Nonindicted 3’s testimony and Nonindicted 4’s investigative agency’s statement, it is clear that the Defendant unilaterally notified that the future unit price can be adjusted, and that it did not intend to consult or negotiate with the customer Center with a fee unit.

④ Furthermore, at a meeting of the customer center held on April 2009, when the customer center discusses complaints in accordance with the policy to reduce the unit price, the Defendant’s side rather stated that the customer center would resign from office if the customer center refuses to do so (i.e., investigation record 921 pages).

C) Circumstances that the reduced unit price is not less than that of the competitor do not warrant recognition that the defendant abused his position in the trade and provided disadvantage.

① Since the issue of this case is whether the defendant's unilaterally reduced the unit price of a fee without prior consultation or grace period with the customer center, who is the opposite contractual party, by unfairly taking advantage of his/her transaction position, is detrimental to fair trade, it is necessary to determine whether the defendant's reduced unit price of a fee in comparison with the existing unit price of a fee applied to the customer center, and such measure cannot be justified solely on the ground that the reduced unit price is a level similar

② In general, it is not generally permissible to unilaterally reduce the unit price determined at the time of the contract by reflecting the market price, such as the level of the competitor’s fee. The cases invoked by the Defendant through the grounds of appeal are related to the extension of the lessor’s rent in entering into the renewal contract after the termination of the lease contract period, or the subcontracting of construction individually entered into the contract for each construction, which

(3) The CATV broadcasting business is a local monopoly business that allows only one businessman to run the CATV broadcasting business within a certain broadcasting zone (excluding Seoul and some areas, etc. of the defendant company) except in Seoul and some areas. Since each broadcasting zone has already been established, there is no reason to consider the level of the unit price of the competitor's fee.

B. Determination on the grounds of unfair sentencing by prosecutors and defendants

Taking into account the fact that criminal punishment provisions for unfair trade practices under the Fair Trade Act are complementaryly operated, and that the Defendant was subject to sanctions such as penalty surcharges, etc. regarding the instant act, considering the motive, means and result of the instant crime, the circumstances after the instant crime, the absence of change of circumstances that may change the first instance sentence, and other various circumstances as shown in the records and arguments in the instant case, the first instance court’s sentence cannot be deemed to be light or unreasonable. Accordingly, the prosecutor and the Defendant’s assertion of unfair sentencing cannot be accepted.

4. Conclusion

Therefore, since the judgment of the court of first instance has the grounds for ex officio reversal as seen earlier, the acquittal part of the judgment of the court of first instance shall be reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor’s grounds for appeal, and the appeal of the prosecutor and the defendant regarding the conviction part of the judgment of the court of first instance shall be again decided as follows. Since there are no grounds for appeal of the prosecutor and the defendant among the judgment of the court of first instance, all of them shall be dismissed pursuant to Article 364(4) of the Criminal Procedure Act (Provided, That in accordance with Article 25 of the Rules on Criminal Procedure, “2010Ga6021, which is obvious that it is a clerical error, is 2010Ga6021” and “3,581,242,000 won” of the 112 parallel shall be “1,379,132,000 won”, and “29 parallel 13” shall be “10 each”).

In the judgment of the first instance, a new decision concerning acquittal shall be rendered.

1. Summary of the facts charged

Since the judgment of the court of first instance is the same as the corresponding part of the acquittal, it shall be cited in accordance with Article 369 of the Criminal Procedure Act.

2. Determination:

For the reasons mentioned in paragraph (2) above, this part of the prosecution is dismissed in accordance with Article 328 (1) 4 of the Criminal Procedure Act.

Judges Cho Il-il (Presiding Judge)

심급 사건

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원심판결

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