Lot shopping Co., Ltd. (Law Firm LLC, Attorneys Park Im-sik et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Democratic, Attorneys Lee Han-soo et al., Counsel for the defendant-appellant)

July 21, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s corrective order and penalty surcharge payment order in attached Form 1, which was issued against the Plaintiff by Decision No. 2015-173 on May 20, 2015, shall be revoked.

1. Basic facts and circumstances of dispositions;

A. Status and status of the plaintiff

The Plaintiff is a large franchise and retail business operator under Article 2 subparagraph 1 of the Act on Fair Transactions in Large Franchise and Retail Business (hereinafter “Large Franchise and Retail Business Act”), which sells goods used by consumers after being supplied by multiple business operators and uses a store with a total size of at least 3,000 square meters for retail business in the immediately preceding business year, and whose retail sales in the immediately preceding business year are at least 1,00 million won. The Plaintiff’s general status is as follows.

Table (based on March 2014, as of March 3, 201, unit: 2014) included in the main sentence (based on 2014. 3. 3. 5, 201) 16,121, 201. 2, 145, 216, 181, 121, 121, 838 16,562, 962, 742,936 1,018, 214618, 4747, 7497,565,565,5866, 374, 2057, 2057, 2057, 7497,57, 565, 586, 857, 875, 2085, 386, 3984, 2086, 3986, 3965

(b) Market structure and major forms of transactions of large discount stores;

1) In general, a superstore is a large-scale store with a store with a total area of at least 3,00 square meters under the Distribution Industry Development Act, which sells goods at retail stores at a price lower than the ordinary market price by rationalizing distribution and sales structure, such as large-scale purchase, mass display, sales of low-scale and high-speed circuits, and accelerator services. The market size of a domestic large-scale retail store is estimated to the extent of KRW 38.7 billion as of 2012, and the upper 3 large-scale retail stores, including the Plaintiff, account for about 67.7% of the total market share. The sales amount of a large-scale retail store and the market share of the upper 3 large-scale retail stores are as follows.

The table (unit: Chowon) classification in the main sentence of the Table in the year 2009 shall be 28.4% of the total sales in 201.2.37 37.3% of the 201.234.3% of the total sales in 2011 and 28.4% of the heading 28.3% of the heading 24.3% of the heading 23.8% of 23.8% of the heading 14.2% of the heading 15.7% of 16.4% of the total sales in 2011 and 67.0% of the total sales in 68.3% of 69.1% of the heading 67.7% of the heading 2012.7% of the heading

2) The form of a large franchise and retail business operator’s transaction with a supplier is classified into a direct purchase transaction, a special contract purchase transaction, and a sales lease transaction. Of these, the direct purchase transaction is the form of a transaction in which a large franchise and retail business operator directly purchased and sells goods from a supplier. In principle, when the purchase of goods is finalized, the ownership is transferred from a supplier to a large franchise and retail business operator. Therefore, the large franchise and retail business operator

C. Business of VICmarkets (hereinafter “bigmarkets”) among major discount stores operated by the Plaintiff

On the other hand, Big Market, among major discount stores operated by the Plaintiff, started a business around June 2012 as a warehouse discount store operated by pay member system. Big Market, compared to general discount stores, sells goods by packaging in large quantities while there are little kinds of goods equipped with each item compared to each item.

D. The defendant's disposition

1) On May 20, 2015, the Defendant issued a corrective order and a penalty surcharge payment order in attached Form 1 to the Plaintiff on the ground that the Plaintiff’s following act (hereinafter “instant act of violation”) constituted an act of imposing the costs required for sales promotional events without written agreement on the supplier (hereinafter “expenses required for sales promotional events”) under Article 11(1) through (4) of the Large-Scale Distribution Business Act (hereinafter “the instant order of penalty surcharge payment”) on the grounds that the instant demonstration event subject to the instant disposition constituted “an act of imposing on the supplier the costs required for sales promotional events without written agreement” (hereinafter “expenses required for sales promotional events”), as set forth in attached Table 1 (hereinafter “instant disposition”), and the Plaintiff complied with only the order of penalty surcharge payment order.

From February 28, 2013 to April 2, 2014, the Plaintiff, included in the main text, held 1,456 events to promote the sale of food beverage products without a written agreement on the ratio of economic benefits anticipated to be earned by the Plaintiff and the supplier and the ratio or amount of the cost of the event before conducting the event at four stores, such as the Big Market gold Store, the Shin Young Store, the Young Store, and the Dobong Store, etc., and held 1,456 events to promote the sale of food beverage products, and imposed a total of KRW 1,605,307,420 on the 149 suppliers, such as the Gbmarket, and bear the cost of the event.

2) The Defendant’s calculation process of penalty surcharge against the Plaintiff is as follows.

From February 28, 2013 to April 2, 2014, the date when the Plaintiff calculated the penalty surcharge in the main text, based on the supply price of goods related to the calculation of the basic penalty surcharge, which was included in the main sentence, deemed as the period of the violation. The imposition rate of KRW 3,159,157,861, which was the total purchase price of the goods for the relevant trial event during this period, caused damages to many suppliers due to the instant trial event. The Plaintiff’s deletion of the relevant data by considering the following as a whole: (a) the impact of the instant trial event on the establishment of fair trade order in the domestic large retailer market on the third business operator in the domestic large retailer market; (b) the imposition rate of KRW 40% corresponding to the relevant supply price; (c) the imposition rate of KRW 100,00, which was multiplied by the imposition rate for the relevant goods; and (d) the Defendant’s submission of the data to the Plaintiff’s employees Nonparty 1 and the head of each product sector; and (c) the Plaintiff’s deletion of the relevant data.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. Summary of the plaintiff's assertion

The plaintiff asserts that the disposition of this case is unlawful for the following reasons.

A. Whether the instant violation is lawful

1) The instant pilot event voluntarily requested the supplier to dispatch his employees, and ② the Plaintiff and the supplier agreed in writing on the terms and conditions of the dispatch of his employees, and ③ the pertinent employee was engaged in food services, which are sales assistance activities of goods, and thus lawfully implemented pursuant to Article 12 of the Large-Scale Distribution Business Act. Furthermore, if the instant pilot event is lawful in accordance with the foregoing provision, it cannot be determined whether the instant pilot event was illegal by applying Article 11 of the same Act in accordance with the systematic and uniform interpretation principle of the law.

2) Even if Article 11 of the Large-Scale Distribution Business Act is applicable to the instant temporary events for domestic purposes, the instant temporary events do not conflict with Article 11 of the Large-Scale Distribution Business Act for the following reasons.

A) Since the current law does not clearly stipulate the meaning of a sales promotion event, if it is interpreted constitutional and restrictively in light of the legislative intent and purpose of the Act on Large Franchise and Retail Business, the event for sales promotion to be regulated by Article 11 of the Act on Large Franchise and Retail Business should be interpreted as ① an event conducted by a large franchise and retail business operator, ② the estimated profit should be calculated, ③ the exercise for sales promotion should be limited to the exercise for which the main purpose is to promote sales. However, the instant showive event is ① the sales assistance act conducted by a supplier, not a large franchise and retail business operator, and ② the determination of the existence and degree of anticipated profit by food is difficult, ② the calculation cannot be made because it is conducted for the promotion of sales promotion rather than the increase of short-term sales, and thus, it does not constitute a sales promotion event regulated by Article 11 of the Act on Large Franchise and Retail Business.

나) 원고는 ㉮ 이 사건 시식행사를 위한 상품의 매입비용 및 재고 위험을 부담하고, ㉯ 엔드(end) 주1) 매대 를 시식을 위한 공간으로 활용하게 하면서 별도로 다른 대형유통업자들이 지급받는 엔드매대에 대한 매대진열 장려금을 요구하지 않았으며, ㉰ 시식 요원들이 차지하는 원고 소유 부동산 중 일부 공간의 차임 상당을 납품업자들에게 청구한 바 없고, ㉱ 신선식품의 판매가 인하 및 폐기 관련 비용을 원고가 부담하며, ㉲ 이 사건 시식행사를 위한 상품의 매입 원가에 시식 비용이 이미 반영되어 있고, ㉳ 상품의 진열·정리를 위한 인건비를 납품업자들에게 별도로 받지 않는 등 사실상 이 사건 시식행사 비용의 50% 이상을 부담하였다.

C) The instant demonstration constitutes an exception to Article 11(5) of the Act on Large Franchise and Retail Business, since the instant demonstration was voluntarily requested by suppliers and suppliers according to their respective interests, and the Big Market allows only food for each category of product during the same period. As such, the instant demonstration constitutes a case where a specific supplier conducts a sales promotion event differentiated from other suppliers in terms of time, content, etc., such as a case where a specific supplier conducts a sales promotion event differentiated from that of another supplier. Here, if the excessively strict interpretation of the requirements for discrimination exceeds the requirements, large franchise and retail business operators are forced to respond to the supplier’s request for a sales promotion event, and thus, it is reasonable to somewhat relax the requirements for discrimination.

D) Article 3 of the Large-Scale Distribution Business Act provides that “The Act does not apply to transactions in which a large franchise and retail business operator is not deemed to have a superior position to a supplier.” However, the Big Market has no influence over the distribution market due to the lack of market share, and 4 stores were operated only in the metropolitan area at the time of the instant trial event without a nationwide distribution network. The supplier of the Big Market has most overlapping transactions with other large retail stores, and most of the suppliers of the Big Market have been engaged in transactions with other large retail stores, and the share of sales in the Big Market is less than 5%, so it has a easy substitute trading line to be converted, and the Plaintiff is not in superior position to the supplier in the first place. In particular, it is clear that the Plaintiff is not recognized to have a dominant position in the transaction relationship with the supplier, such as the supplier or the Plaintiff’s affiliated company belonging to a mutual investment restriction enterprise group, multi-national supplier, and the supplier holding a dominant position in the relevant market.

(b) the deviation and abuse of discretionary authority in the calculation of penalty surcharges;

1) The instant violation does not fall under any of the requirements for imposition of penalty surcharges prescribed in the public notice (amended by Defendant Notice No. 2014-11, Nov. 27, 2014; hereinafter “public notice of penalty surcharges”) on a business operator violating the Large-Scale Distribution Business Act. Moreover, the instant violation is not subject to the penalty surcharges on the grounds that: (a) the supplier’s burden of food costs, as in the instant demonstration, is a long-term practice in the domestic and foreign distribution industry; (b) the Defendant did not impose sanctions once in relation to the instant demonstration; and (c) the Defendant imposed only corrective orders on the sales promotion cost of large franchise and retail business operators; and thus, (d) the instant violation cannot

2) Meanwhile, since the Plaintiff’s purchase amount during the instant demonstration period is almost relevant to the instant demonstration, it cannot be deemed that the relevant supply price, which serves as the basis for calculating the penalty surcharge, is not the relevant supply price. Moreover, the Plaintiff’s direct preservation of at least 50% of the trial cost to the Korea Food Co., Ltd. (hereinafter the stock company’s indication is omitted) and to the suppliers of Libyho, thereby not including the purchase amount from the supplier in the relevant supply price.

3) In light of the fact that it is difficult to deem that the instant trial event caused damages to many suppliers, and that the instant trial event was limited to the trial ceremony conducted in the Big Market, which is a member discount store, the Plaintiff’s share in the Plaintiff’s “large-type general marina Market”, it is unreasonable to calculate the imposition rate based on the Plaintiff’s calculation of the imposition rate based on the Plaintiff’s share. In light of the fact that a store is only four and is located in Seoul and Gyeonggi-do only, and that the ripple effect of the instant trial event has not occurred due to the instant trial event, the Defendant’s choice of the imposition rate of 40% on the premise that the instant violation constitutes a “large-scale violation” is unlawful.

4) ① The Defendant’s investigation officer’s request for access to the Plaintiff’s documents obtained through Nonparty 2’s Ndr, hereinafter “Ndr”) is illegal investigation and thus, it cannot be deemed that the Defendant’s investigation act constitutes interference with investigation even if the Defendant did not cooperate by deleting some materials. Moreover, Nonparty 1’s above act is only an act of removing 3,4 overlapping files that are not meaningful for detecting and analyzing the material such as an unsatisfy file, etc., and it is merely an act of removing 3,4 overlapping files that are irrelevant to the Defendant’s request for access to the documents. ② The materials deleted by Nonparty 1 are merely a copy file of the documents that the Defendant had secured through Nonparty 2’s Ndr, and the intent or result of the investigation is not recognized, as there is no relevance with the illegality of the exercise of the trial process of this case and the calculation of the penalty surcharge, and ③ Nonparty 1’s cooperation with the Defendant’s officers and employees on the ground that it did not interfere with the investigation.

A) In order to guarantee the party's autonomy in an on-site investigation, the necessity of an on-site investigation, the details of administrative fines and criminal punishment accompanying the refusal of an investigation, and the consent of the party should be obtained. With respect to the limitations of an on-site investigation, the defendant must notify the object and object of the investigation in advance, obtain consent from the person subject to investigation, and comply with the principle of proportionality in the investigation. Therefore, an unlimited data or object investigation in violation of the principle of proportionality constitutes a compulsory investigation,

B) According to the official document sent by the Defendant to the Plaintiff at the time of the instant on-site investigation, the Plaintiff’s non-party 2 and the non-party 1 were not aware of what constitutes a suspected fact. In that context, the Defendant’s investigating officials first requested the non-party 2 to inspect personal Ndr’s comprehensive, thereby allowing the non-party 2 and the non-party 2 to allow the non-party 2 to peruse the Ndr’s comprehensive. Such investigation by the Defendant investigating officials is disqualified.

C) On the other hand, Nonparty 1, who did not strongly refuse to respond to Nonparty 2, and permitted personal Ndr access as requested by the Defendant’s investigator, and the investigation against Nonparty 2 and Nonparty 1 by the Defendant’s investigating official, can be deemed as a practically series of investigations. According to the above circumstances, the investigation against Nonparty 2 and Nonparty 1 is deemed as a de facto compulsory investigation due to lack of voluntariness, and this is contrary to the constitutional warrant principle.

D) Even if the investigation of Non-party 1 by the Defendant’s family investigating officer is a voluntary investigation with the voluntariness, the Defendant investigating officer’s demand for an individual Ndr’s comprehensive perusal to Non-party 1 is a web franch, which is included in the Non-party 1’s personal e-mail perusal, and eventually, Ndr’s perusal is similar to the request for access to the company’s personal e-mail, and thus, it is likely that the company’s trade secret might be exposed to the outside, as well as that of the request for access to the company’s internal e-mail, and the personal information of the employees concerned might be exposed to the outside. As seen earlier, in light of the fact that the Defendant did not specify the Plaintiff’

5) The notice of imposition standard of penalty surcharges on a business entity violating the Large-Scale Distribution Business Act (amended by Defendant Notice No. 2016-9, Jun. 30, 2016; hereinafter “amended penalty surcharge notice”) was amended to achieve the proportionality between the amount of penalty surcharges and the amount of violation of the Act on Large-Scale Distribution Business, and thus, the Defendant should consider it when calculating the penalty surcharges. Since Big Market has a low market share in the large-scale distribution market and only four stores are operated, the impact of the instant trial event on the large-scale distribution market is insignificant. The Plaintiff’s unjust enrichment due to the instant trial event is approximately KRW 80 million. The Plaintiff’s unjust enrichment due to the instant trial event is excessive compared to unjust enrichment in the Home Plus case (Defendant Resolution No. 2014-7, Mar. 6, 2014). In light of the principle of proportionality reduction of penalty surcharges in the instant case (Defendant Resolution No. 2014-46, Mar. 6, 2014).

3. Relevant statutes;

Attached Form 4 shall be as listed in attached Table 4.

4. Whether the violation of this case is lawful

A. Judgment on the Plaintiff’s assertion on Article 12 of the Act on the Large Distribution Business

In comparison with the provisions of Articles 11 and 12 of the Large Franchise and Retail Business Act, if the purpose of all of the above provisions is to regulate unfair infringement of suppliers' interests by taking advantage of a superior trading position between a large franchise and retail business operator and a supplier, it is reasonable to view that Article 11 of the Act is to regulate suppliers, etc.' use of large franchise and retail business operators for employees, etc., while Article 12 of the Act intends to regulate suppliers, etc.' obligations on promotion of sales of large franchise and retail business operators. In light of the above, even if a single act is lawful by Article 12 of the Large Franchise and Retail Business Act, it is reasonable to view that the application of Article 11 of the Large Franchise and Retail Business Act is not excluded solely on the ground that the act of household is legitimate by Article 12 of the Large Franchise and Retail Business Act, and the same applies to the violation of this case. Accordingly, regardless of whether the violation of this case is legitimate by Article 12 of the Large Franchise and Retail Business Act, the plaintiff's assertion in this part against this is unacceptable.

B. Whether the instant demonstration constitutes a sales promotion event under Article 11 of the Large-Scale Distribution Business Act

1) Article 2 subparag. 8 of the Large Franchise and Retail Business Act defines sales promotional events as "all events or activities conducted to increase demand for goods regardless of name or form, and Article 11(1) of the Large Franchise and Retail Business Act provides that "large franchise and retail business operators shall not impose on suppliers, etc. the burden of sales promotional expenses incurred in sales promotional events, as prescribed by Presidential Decree, unless they enter into an agreement with suppliers, etc. before conducting sales promotional events." In light of the above provisions, sales promotional events regulated under Article 11 of the Large Franchise and Retail Business Act shall be deemed to be conducted by large franchise and retail business operators among all events or activities conducted for the purpose of promoting sales as prescribed under Article 2(8) of the same Act.

2) However, the following circumstances, which are acknowledged as comprehensively considering Gap evidence 1, Eul evidence 5, and Eul evidence 9 and the witness non-party 3's testimony, i.e., the probationary event of this case, among the goods sold by the plaintiff, falls under the event for the purpose of promoting the purchase by informing consumers of the food and drink and quality, and providing assistance to the purchase decision, and at the same time, expanding the demand therefor, the supplier and the plaintiff's transaction method involved in the probationary event of this case were the direct purchase. The plaintiff continuously planned and implemented each trial of this case. The plaintiff planned and implemented the probationary event of this case as a improvement plan for the goods with low performance compared to the number of the target stock holdings while preparing and managing the inventory number of goods, or discussed the expansion or reinforcement of the probationary event by measures for promoting monthly sales, personnel expenses for the number of persons participating in the probationary event are borne by the supplier without consultation with the plaintiff and the supplier, it is reasonable to deem that the probationary event of this case constitutes a regulation under Article 11 of the Act.

3) Meanwhile, Article 11(3) of the Act provides that “Where the ratio of sales promotion expenses is determined according to the ratio of estimated profits of large franchise and retail business operators and suppliers, etc., such ratio shall be presumed to be the same as expected profits of large franchise and retail business operators and suppliers, etc., if such ratio cannot be calculated, it shall be presumed that the estimated profits of large franchise and retail business operators and suppliers, etc. are the same.” Therefore, in determining whether a sales promotion event

4) Therefore, the Plaintiff’s assertion on this part is without merit.

C. Whether at least 50% of the costs of the instant trial event was borne by the Plaintiff

원고의 대규모유통업법 제11조 제1 내지 4항 위반행위는 제11조 제1항 에서 규정하고 있는 바와 같이 대규모유통업자가 판매촉진행사를 실시하기 이전에 판매촉진비용의 부담 등을 납품업자등과 약정하지 아니한 채 납품업자등에게 부담시킴으로써 성립하고, 원고의 주장과 같이 사실상 이 사건 시식행사 비용의 50% 이상을 원고가 부담하였는지 여부는 원고의 대규모유통업법 제11조 제1 내지 4항 위반 여부에 영향이 없다고 봄이 상당하다. 또한 앞서 본 바와 같이 이 사건 시식행사에 참가한 납품업자와 원고의 거래 방식은 모두 직매입거래 방식이었던 점 및 시식상품에 관한 원고와 납품업자들의 부담액에 대하여 기재된 을 제10호증의 내용 등에 비추어 볼 때 원고가 들고 있는 비용 중 ㉮ 내지 ㉱, ㉳ 비용이 대규모유통업법 제11조 의 판매촉진비용에 해당한다고 보기도 어렵고, ㉲ 비용은 이를 인정할 증거도 없다. 원고의 이 부분 주장 역시 받아들일 수 없다.

D. Whether Article 11(5) of the Large-Scale Distribution Business Act applies to the instant demonstration events

1) According to the provisions of Article 11 of the Large-Scale Distribution Business Act, Article 11 (5) of the same Act constitutes exceptions to Article 11 (1) through (4). In light of the legislative intent of Article 11 (1) through (4) of the Large-Scale Distribution Business Act aiming at the protection of suppliers, etc., relaxing the scope of application of such exceptions is determined to be contrary to the legislative intent of Article 11 (1) through (4) of the Large-Scale Distribution Business Act.

2) The following circumstances are acknowledged by comprehensively considering the statements in Eul evidence Nos. 1, 2, 4, and 7 and the purport of the entire arguments in witness testimony of the non-party 4 and non-party 3. In other words, the food event is hard to view that the supplier, etc. provided new and processed food to be potable in the store so that it can be consumed at the store and there is a specific discrimination between the supplier itself. The same applies to the food event in this case. The food event in this case was conducted through standardized food operation. In this case, where the supplier uses the food service agency, most of the suppliers entrusted the food service to a single agency (PDS). In this case, the agency performed the food service event in the same operating method, and even if the food service event was conducted only for the same period for each of the domestic product group, it is difficult to view that the non-party 4 voluntarily participated in the food service at the time of exercising the plaintiff's testimony in light of the legal principles that the plaintiff's testimony had been held at the time of exercising the food service in this case.

3) Therefore, the Plaintiff’s assertion on this part cannot be accepted.

E. Whether the Plaintiff is in a superior position to the supplier in transactions

1) Whether a supplier, etc. has a superior position in the transaction shall be determined by comprehensively taking into account the structure of the distribution market, consumer consumption status, business capability gap between large franchise and retail business operators and suppliers, etc., dependence on transaction with large franchise and retail business operators, characteristics of goods subject to transaction, scope of distribution business operated by a business group under Article 2 subparagraph 2 of the Fair Trade Act or by a single large and retail business operator (see Article 3 (2) of the Large-Scale Distribution Business Act). It is reasonable to deem that a superior position in the transaction can be recognized if one party has a relatively superior position in the transaction market, or a position that may have a considerable influence on transaction activities with the other party (see Supreme Court Decision 2007Du20812, Oct. 29,

2) Recognizing the facts acknowledged earlier and the purport of the evidence No. 7, part of testimony and oral argument of the witness Non-party 4, i.e., Big Market and Swelve Market are classified within the Plaintiff’s internal business headquarters, and so long as Big Market and Swelve Market are a large-scale distributor belonging to the Plaintiff, it shall not completely exclude the market share of Swelve Market in determining the superior position of the supplier. However, in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff’s market share of Swelve Market is a three large-scale retail stores in Korea. ② In addition, in order to secure a stable market for goods and to recognize the supply of high-quality goods to consumers, the supplier is competing with the Plaintiff’s large franchise and retail business operator, and that it is not easy for the Plaintiff to select a large-scale supplier as an alternative supplier and a large-scale supplier that actually supplies the goods to the supplier.

3) Therefore, the Plaintiff’s assertion on this part is without merit.

5. Whether the instant penalty surcharge payment order is lawful

A. Whether the violation of this case is subject to penalty surcharge

In full view of the provisions of Articles 3.1.1., 3.2.b. and 3.3. of the Act, it is reasonable to view that the Defendant may impose penalty surcharges on the case where it is deemed that the effect of impairing fair trade order in the large franchise and retail business due to the violation of the Act on Large Franchise and Retail Business is serious or that it has a significant impact on a large number of suppliers. In addition, the Defendant’s violation of the Act on Large Franchise and Retail Business may not be justified on the ground that the violation of the Act on Large Franchise and Retail Business was committed against a large number of suppliers, i.e., the violation of the Act on Large Franchise and Retail Business.

B. Whether the calculation of related price of supply is illegal

According to Article 28(1) of the Enforcement Decree of the Large-Scale Distribution Business Act and Article 28.4.1 (a) of the penalty surcharge notice, "the related price for supply refers to the purchase amount of related goods purchased by a large franchise and retail business operator during the period of a violation or the amount equivalent thereto." According to Article 2.4.2.2 (b) of the penalty surcharge notice, "relevant goods shall be judged individually and specifically by type of act, taking into account the type and nature of the goods directly or indirectly affected by the violation, transaction area, transaction partner, transaction stage, etc., but the related goods shall include the goods in which transaction has not been actually conducted or has not been conducted due to the violation." Accordingly, it is reasonable for the Defendant to consider that the total purchase amount of the relevant available goods purchased by the Plaintiff from February 28, 2013 to April 2, 2014, which is the period during which the instant trial is held, and it is not reasonable for the Plaintiff to exclude the above amount from the supply price.

(c) Whether the decision on the imposition standard rate is illegal;

According to Article 35(1), Article 28(2) of the Enforcement Decree of the Act on Large Franchise and Retail Business, and Article 4.1.1(a) of the Enforcement Decree of the same Act, the degree of gravity of violations of the Act shall be determined by comprehensively taking into account the degree of undermining fair trade order caused by the violation, the influence and ripple effect on the market, and the degree of damage to the supplier concerned. The following circumstances revealed as above. In other words, the Plaintiff’s 3 business entities in the large scale distribution market has a significant ripple effect on establishing fair trading order in the large scale distribution business. due to the instant demonstration, the supplier suffered a loss in which the supplier agreed to pay the cost of the trial according to Article 11 of the Act on Large-Scale Distribution Business. As pointed out by the Plaintiff, the store located in Seoul and Gyeonggi-do four places at the time of the instant trial event are located in Big Market, and it can not be viewed that the Defendant’s use of big market as a large-scale discount rate by considering not only the population density of the store but also the distribution of the store.

(d) Whether a penalty surcharge is aggravated due to obstruction of investigation;

1) According to the main text of Section IV.2.2.b.(3) of the penalty surcharge notice, “where an offender or an executive officer or employee of the offender refuses, interferes with, or evades the investigation into the offense, or actively conceals the offense, an amount equivalent to within 30/100 of the base amount for calculation shall be added” and Section IV.2.b.(6) of the penalty surcharge notice provides that “where there is any equivalent cause, an amount equivalent thereto within 10/100 of the base amount for calculation shall be added.”

2) Considering the following facts and circumstances acknowledged in light of the purport of the evidence Nos. 1, 33, and 8-1 and 2 of the Plaintiff’s evidence Nos. 8-2, it is reasonable to deem that the files deleted by Nonparty 1, an employee of the Plaintiff, are related to the illegality of the instant trial event or the calculation of a penalty surcharge, and that Nonparty 1 made it difficult to conduct the Defendant’s investigation by making a false statement that there was no fact that the files were deleted and deleted, thereby hindering the Defendant’s investigation into a violation of the Act on Large Franchise and Retail Business, or actively concealing the act of obstructing investigation by the Plaintiff’s officer or employee. According to the above provision of the penalty surcharge notice, it is reasonable to increase the penalty surcharge by 10/100 of the calculation basis by applying the above provision of the penalty surcharge notice. The Plaintiff’s assertion on this part is without merit.

A) On April 21, 2014, the Defendant sent to the Plaintiff an official document stating the name of the investigating public official by stipulating that the purpose of the investigation is “related investigation under the Act on Large Franchise and Retail Business,” and that the investigation period is “from April 22, 2014 to 25,” and that the investigation period is “the Plaintiff’s marina sector,” and that the Defendant notified the Plaintiff that the fine for negligence is imposed pursuant to Article 41 in the event of interference with the investigation by the investigating public official pursuant to Article 29 of the Act on Large Franchise and Retail Business.

B) On April 23, 2014, when investigating the Plaintiff in relation to the instant trial proceeding, Nonparty 1 and Nonparty 2, who is the Plaintiff’s employee, requested perusal on the fact that Nonparty 1 and Nonparty 2 were stored in Ndr’s 4).

In the process, it was notified that a fine for negligence may be imposed in accordance with the statutes if an investigating official refuses, interferes with, or evades an investigation, fails to submit data requested by an investigating official, or arbitrarily deletes computer files, etc. designated by an investigating official

C) At first, Nonparty 2 refused the demand of the Defendant’s investigating official on Ndr’s Logs, but the investigating official revealed that Ndr’s use was for business purposes, and eventually, Nonparty 1 responded to the demand of the Defendant investigating official on Ndr’s Logs.

D) Although Nonparty 2 and Nonparty 1’s Ndr are linked to a personal e-mail account and contain some of the private contents, it appears that there was a considerable probability of storing data related to the violation of the Act on the Large-Scale Distribution Business before the aforementioned Ndr’s perusal. In fact, considerable of the stored files were related to the Plaintiff’s business.

E) The Defendant’s investigating officials perused and copied Nonparty 2’s Nrrives and took measures to delete private information, and Nonparty 1’s Nrives also perused.

F) However, upon receipt of the Defendant’s request from the Defendant investigator, Nonparty 1 deleted 13 of the files related to the work, which the Defendant investigating official stored in his Ndr’s place, and made a false statement that he did not delete any point at first on the inquiry of the investigating official, but acknowledged the fact that he reversed his subsequent statement and deleted some files.

G) Due to the nature of the Defendant’s on-site investigation, the Defendant’s prior determination of the purpose and object of the investigation is bound to be limited. In this case, the Defendant stated the purpose of the investigation as “suspect of violation of the Large Franchise and Retail Business Act” and stated that there was a considerable probability for storage of data related to the violation of the Large Franchise and Retail Business Act with the consent of Nonparty 2 and Nonparty 1, as well as the request for access by Nonparty 2 and Nonparty 1, which was related to the Plaintiff’s work, constitutes a de facto compulsory investigation contrary to the warrant principle under the Constitution, or it does not seem unlawful.

H) Although the investigating official requested Nonparty 1 not to delete the data and, if so, knew that there is a disadvantage such as the fine for negligence, etc., it is difficult to understand that Nonparty 1 arranged files to assist the Defendant’s investigation.

E. Whether the principle of proportionality is violated

In light of the provisions of Paragraph 1 of the Addenda to the Public Notice of the Amendment, the phrase “the date this public notice shall enter into force” shall not be deemed to be unlawful for the defendant’s measure to calculate the penalty surcharge of this case based on the public notice of the penalty surcharge of this case. As seen earlier, the violation of this case constitutes a serious violation, the penalty surcharge against the plaintiff also has an administrative sanction that imposes sanctions on the violation of this case, and the case asserted by the plaintiff alone cannot be deemed to have been settled as a binding administrative practice in the case of the violation of the Large-Scale Distribution Business Act, and there is no other evidence to recognize it. In full view of the above, the defendant’s order to pay the penalty of this case cannot be deemed to have violated

6. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Yoon Sung-won (Presiding Judge)

1) The UNFCCC refers to both edges of the store display team and is located mainly in the passage to which consumers pass, so the effect of display on the product is rare.

Note 2) It appears that the instant facts appear that the “shot” appears to refer to the “shot” in the said facts.

3) Among the instant trial event goods, the share of big market alone 92.3% among the goods held in the instant trial event is the Plaintiff.

Note 4) It is the cloud service provided by NAV as a web download.

5) According to Article 50(3) of the Fair Trade Act, the Defendant’s investigating public official may order the executives and employees to submit materials or things necessary for the investigation.