[1] The standards for determining whether a manufacturing company directly or indirectly participated in the event of an agency's offer of free gifts

[2] The case reversing the judgment of the court below which held otherwise on the ground that the above newspaper company was indirectly involved at least in the event of the offer of free gifts to the country where the local branch office of the newspaper attempted to provide free gifts from the country by preparing detailed guidelines that it is possible for the branch office to provide free gifts in the course of selling promotion activities

[3] Requirements for an employee sales act to constitute an unfair trade practice, and whether it can be deemed an unfair trade practice only by urging and encouraging executives and employees of the company to endeavor to increase the buyer's goods of the company (negative)

[4] The case holding that the relevant newspaper company's establishment and implementation of a new plan for expansion of the subscription, such as urging the relevant newspaper company to secure more than five new subscription persons per person, officers and employees of the company and giving goods to officers and employees who have achieved the sales target, does not constitute a compulsory sale of the company

[5] Conditions to constitute unfair trade practices under Article 6 subparagraph 4 of the Public Notice of Types of and Criteria for Criteria for Unfair Trade Practices, and the standard for determining whether the acts unfairly disadvantage the other party

[6] The case holding that it cannot be readily concluded that, among the transaction agreements between the newspaper company and the branch company, "all lawsuits arising out of this contract shall take place in the competent court of the newspaper company in principle" is likely to undermine fair trade by impairing the foundation of free competition

[1] Whether a manufacturer directly or indirectly involved in an event to provide free gifts, etc. shall be determined on the basis of whether the manufacturer has exercised substantial influence on an event to provide free gifts, etc. by giving an agent instructions to provide free gifts, promoting, or promoting the provision of free gifts, by comprehensively taking into account all the circumstances such as the developments leading up to the event to provide free gifts, the degree of participation in the planning and implementation of the event to provide free gifts, and the person bearing the cost of purchasing free gifts.

[2] The case reversing the judgment of the court below which held otherwise on the ground that the local branch office of a newspaper contributed to the provision of free gifts to the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office of the branch office

[3] In principle, the other party to a trade compulsory means a person who becomes a partner in a direct transaction, and thus, the "act of exercising coercive power against the other party who could have been a customer of the other competitor to make a transaction with him/her" is prohibited. Therefore, in order to constitute unfair trade practices, an act of compelling an employee or employee to purchase his/her own company's goods or allocating sales volume of his/her own company's goods to at least the same extent that the employee or employee could have been allowed to purchase the company's goods and selling them are not possible, and it is insufficient to urge and encourage an employee or employee to make efforts to increase the buyer's goods.

[4] The case holding that the newspaper company's establishment and implementation of a new subscription expansion plan, such as urging the company to secure new subscriptions more than five new subscriptions per person and officers and employees of the company and its affiliated companies under the name of "the 73th anniversary anniversary of the establishment of a family extension plan", compiling and publicly announce the performance of each department, while setting up and giving goods to officers and employees who have achieved the sales target, does not constitute a compulsory sales act against the company

[5] Under Article 23 (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996), in order to constitute unfair trade practices under Article 6 (4) of the Fair Trade Act (Notice No. 1993-20 of Nov. 19, 1993), the content of the act is somewhat disadvantageous to the other party. It is insufficient to say that one party has abused its superior position to the extent that it can be deemed like compulsory purchase, coercion of provision of profits, enforcement of sale, etc., and therefore, it is likely to unfairly disadvantage the other party to disadvantage the other party in light of normal trade practices. Whether it is an act of unfairly unfavorable to the other party should be determined by taking into account various factors such as the content and probability of disadvantages that may arise to the other party, degree of competition in the ordinary trade process between the parties, competition-related industry's trade practices and trade practices, influence on the general competition order, and other relevant provisions of law and regulations.

[6] The case holding that among the contents of the agreement between the newspaper company and the branch office, the contents of "in principle, all lawsuits arising out of this contract shall be conducted in the competent court of the newspaper company," which are somewhat disadvantageous to the branch office office, but it cannot be concluded that there is no possibility that fair trade might be impeded, such as where disadvantages that may be received by the branch office office under the above contract provisions are unreasonable, or weakening the foundation of free competition.

[1] Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 196), Article 20 of the former Public Notice of Types of and Criteria for Provision of Gift / [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 Article 23 (3) 9 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996); Article 23 (1) 3 of the former Public Notice of Article 23 (1), Article 23 (2) 9 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996); Article 29 of the former Public Notice of the Fair Trade Commission's / [300 of the Fair Trade Commission's Public Notice of Article 193

[1] Supreme Court Decision 96Nu11280 delivered on March 24, 1998 (the same purport) / [6] Supreme Court Decision 93Nu4984 delivered on July 27, 1993 (Gong1993Ha, 2438)

[Defendant-Appellant] Cho Jae-il (Attorney Lee Jae-soo et al., Counsel for defendant-appellant)

Fair Trade Commission (Attorney Kim Dong-hwan, Counsel for defendant-appellant)

Seoul High Court Decision 95Gu28993 delivered on November 14, 1996

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. On the first ground for appeal

A. According to the reasoning of the judgment below, in this case, where 11 branch countries from among the branch countries that exclusively sell shipbuilding boats issued by the Plaintiff as free gifts, satellite antenna, gas, etc., the court below determined, based on the evidence established by the Plaintiff, that: (a) the Plaintiff conducted a public opinion poll on the utilization of promotional products on two occasions against the branch countries nationwide; (b) the Plaintiff issued equipment, transportation equipment, etc. to the branch countries; (c) partially subsidize operating expenses; (d) the Plaintiff paid 18,000 won or more for the expansion of newspapers; and (e) the Plaintiff indirectly paid subsidies to the branch countries with excellent expansion records at the request of the branch countries; (e) the Plaintiff’s branch offices were dispatched to the branch offices at the request of the 10 branch countries; (e) the Plaintiff’s branch offices with strong response against other promotional taxes on February 1 through 4, 199; and (e) the Plaintiff’s direct efforts to provide free gifts to the branch offices within the scope and scope of the Plaintiff’s orders to provide them to the branch offices, including the foregoing.

B. Article 20 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5235 of Dec. 30, 1996; hereinafter the same) provides that "any act of offering free gifts by an agent, etc. that sells only products of a certain manufacturing company directly or indirectly participated in an event for offering free gifts of an agency, etc., the act of offering free gifts of the relevant manufacturing company shall be deemed an act of offering free gifts of the relevant manufacturing company." Thus, whether the manufacturing company directly or indirectly participated in an event for offering free gifts of an agency, etc. shall be determined on the basis of the agency's actual influence or influence of giving free gifts, etc., comprehensively taking into account all the circumstances such as the process of holding the event for offering free gifts, the degree of participating in the planning and implementation of the event for offering free gifts, and the person bearing the cost of purchasing free gifts, etc.

According to the records (in particular, evidence No. 1-6, evidence No. 4-1, and testimony of Non-Party Witness of the lower court), the Plaintiff: (a) decided to conduct two-month expansion competitions to cope with the competition with the competitive newspaper companies heated in the day; and (b) extended the number of free gifts to a certain level; (c) paid a premium of KRW 8,000 to KRW 9,000; and (d) paid a reward of KRW 1,110,00 to 3,00 to the outstanding branch countries; (d) the Plaintiff’s Daejeon branch office, in accordance with the policies for the extension of the said period, provided that it is possible to encourage the free gifts from February 1, 1995 to provide the free gifts to a certain country; and (e) provided it to the free gifts branch offices, including the Plaintiff’s instructions to promote the use of the free gifts branch offices; and (e) provided it is reasonable to encourage the free gifts branch offices to use some of the free gifts branch offices for the above period of expansion.

On the other hand, in light of relevant evidence and records, the part of the court below's decision that the plaintiff was not involved in the offer of free gifts from the branch of Daejeon branch is correct.

Therefore, the judgment of the court below which held that the plaintiff did not participate in the offer of free gifts by the branch offices in charge of the plaintiff Daejeon did not err by misapprehending the legal principles on the provision of free gifts or by misunderstanding facts against the rules of evidence, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

2. On the second ground for appeal

The latter part of 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) lists "an act of unfairly compelling a competitor to trade with oneself" as one of the unfair trade practices prohibited by the law, and Article 5 (2) of the former Public Notice of Types and Criteria for Unfair Trade Practices (Notice No. 1993-20 of Nov. 19, 1993; hereinafter the same shall apply) provides that "an act of compelling an executive officer or employee of himself/herself or affiliated company to purchase goods or services of his/her own or its affiliated company" as one of the acts types. In light of the above provisions of the law, the other party to trade compulsory means a person who becomes a partner in direct trade, and thus, it is prohibited that "an act of compelling an executive officer or employee of another competitor to trade with himself/herself" is prohibited, and therefore, the act of compelling the relevant enterpriser to purchase goods or to sell them directly to himself/herself.

In the same purport, the decision of the court below is justified in holding that the plaintiff's establishment and implementation of a new reader expansion plan against the members, such as urging the plaintiff to secure new readers more than five times per person and executives and employees of the company and its affiliates under the name of "the 73th anniversary Memorial Family Expansion Games", compiling and publicly announce the performance of each department, and giving goods to the executives and employees who have achieved the sales goal, does not constitute a compulsory sales act against the members, and there is no violation of law as otherwise alleged in the grounds of appeal. The ground of appeal on this point is without merit.

3. On the third ground for appeal

Article 23 (1) 4 of the Act lists "the act of trading with the other party by unfairly taking advantage of his/her position in trade" as one of the unfair trade practices prohibited by the law, and Article 6 (4) of the Standard Announcement provides that "the act of setting or altering the terms and conditions of trading so that it may be disadvantageous to the other party in the course of performing such terms and conditions" shall be "the act of trading with the other party by unfairly taking advantage of his/her superior position in trade" under Article 23 (1) 4 of the Act. It is insufficient to say that the contents of the act are somewhat disadvantageous to the other party in order to constitute unfair trade practices under Article 6 (4) of the Standard Announcement. The determination of whether it unfairly gives disadvantage to the other party in light of normal trade practices should be made by abusing his/her superior position to the extent that it can be the same as that of compulsory purchase, coercion of provision of profits, compulsory sale target, etc.

According to the reasoning of the judgment of the court below, the court below held that the contents of Article 12 of the agreement between the plaintiff and the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the plaintiff'

4. On the fourth ground for appeal

In short, the argument in the grounds of appeal is justified on the premise that the Plaintiff’s act of offering free gifts from a branch under the Daejeon Branch, which the Plaintiff performed against its officers and employees, and the conclusion of a branch establishment contract between the Plaintiff and the director-general of the branch constitutes an unfair trade practice under the premise that the contents of the agreement regarding jurisdiction should be considered as the content of the agreement, and the imposition of the penalty surcharge in this case based on the premise that it constitutes an unfair trade practice. As seen earlier, the argument in the grounds of appeal on this point is without merit, unless there exists any ground for the Defendant’s assertion

5. 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 Jeong Jong-ho (Presiding Justice)