[1] The purpose of Article 23 (1) 3 and Article 23 (2) of the former Monopoly Regulation and Fair Trade Act and Article 36 (1) [Attachment Table] 5 (b) of the Enforcement Decree of the same Act and the criteria for determining whether the sale of employees constitutes "the sale of employees" under Article 23 (1) 3 and (2)

[2] The case holding that where an automobile selling company conducted sales activities against the officers and employees of at least a management agency level and the employees of the company, such sales activities are enforced by limiting the opportunity for the officers and employees to purchase vehicles and choose their types of vehicles, and it constitutes unfair trade practices under the former Monopoly Regulation and Fair Trade Act

[3] Nature of imposing penalty surcharges under the former Monopoly Regulation and Fair Trade Act and method of calculating penalty surcharges imposed on unfair trade practices

[4] Where the amount of penalty surcharge imposed on an unfair trade practice under the former Monopoly Regulation and Fair Trade Act does not exceed the statutory upper limit, in light of the basic nature of imposition of penalty surcharge, i.e., deprivation of illegal economic benefits, and the degree of illegality of the act of employee sales, where the amount of penalty surcharge imposed on an unfair trade practice under the former Monopoly Regulation and Fair Trade Act does not exceed the statutory upper limit, it constitutes deviation or abuse of discretionary authority in violation of the principle of proportionality

[1] Article 23 (1) 3 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) and Article 36 (1) [Attachment Table] 5 (b) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 199) provide that the company's sale of goods and services constitutes unfair trade practices. The company intends to prevent violation of fair trade order by compelling purchase or sale of goods and services by taking advantage of its position in an employment relationship with an officer or employee. In order to constitute such a sale of employee, the company's act is likely to violate fair trade order centering on price and quality by restricting the freedom of choice of officers or employees who are the counterpart to the transaction. However, it is not necessary to establish a fair trade order or trade order, such as purchase, sale and sale, or to establish a fair trade order, and it does not necessarily require any specific infringement of fair trade order or fair trade order.

[2] The case holding that in case where an automobile selling company conducted sales activities against the officers and employees of the class of management agency or higher, and the employees of the class of management agency or higher, such sales activities constitute unfair trade practices under the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999), it enforced the purchase by limiting the employees' opportunities to choose the types of vehicles and the types of vehicles

[3] The imposition of a penalty surcharge under the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999) is basically imposed to deprive the illegal economic benefits acquired by the violation of the same Act even though the imposition of a penalty surcharge is in the nature of sanction. In light of Article 55-3 (1) of the same Act, the imposition of a penalty surcharge also requires the consideration of the contents, degree, period, and frequency of the violation, and the amount of profits acquired by the violation. Thus, the amount of a penalty surcharge imposed on an unfair trade practice is required not only to the degree of illegality determined based on the specific form of the unfair trade practice, but also to maintain a balance between the amount of profit resulting from the violation of the principle of proportionality, and can be deemed to constitute deviation and abuse of discretionary power.

[4] The case holding that even if the amount of a penalty surcharge imposed on a member's act of selling trade under the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999) does not exceed the statutory upper limit, where the amount of the penalty surcharge is excessive in excess of the amount of the profit gained by the member's act of selling trade, the imposition of the penalty surcharge is deemed to constitute a deviation or abuse of discretionary power in violation of the principle of proportionality in light of the basic nature of the imposition of the penalty surcharge, which is the deprivation of illegal economic profit,

[1] Article 23 (1) 3 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199); Article 36 (1) [Attachment Table] 5 (b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Mar. 31, 199); Article 23 (1) 3 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 581 of Feb. 5, 199); Article 36 (1) [Attachment Table] 5 (b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Mar. 31, 199); Article 36 (2) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Act No. 1621 of Feb. 19, 199); Article 36-19-2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 95-19-2 of the former Act / [32)

[1] Supreme Court Decision 96Nu18489 delivered on March 27, 1998 (Gong1998Sang, 1216), Supreme Court Decision 97Nu14125 delivered on May 12, 1998 (Gong1998Sang, 1649) / [3] Supreme Court Decision 99Du1571 delivered on May 28, 199 (Gong199Ha, 1296)

Suwon Automobile Sales Co., Ltd. (formerly: hereinafter referred to as the "Co., Ltd."), (Law Firm Square Law, Attorneys Song-con et al., Counsel for the plaintiff

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

Seoul High Court Decision 99Nu4077 delivered on June 13, 2000

The part of the judgment below regarding the imposition of penalty surcharge is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal by the plaintiff is dismissed.

1. As to the grounds of appeal Nos. 1 and 2

Article 23 (1) 3 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199; hereinafter referred to as the "Act") and Article 36 (1) [Attachment Table] 5 (b) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 199; hereinafter referred to as the "Decree") stipulate the sale of members as unfair trade practices. The company's purpose is to prevent violation of fair trade order by forcing purchase or sale of goods and services by taking advantage of the position of an employee or employee in an employment relationship with the employee. Considering such detailed circumstances as the form and scope of the act in question, the characteristic of the subject product, the position of the competitor in the market, the effect and scale of the competitor, etc., it is recognized that the act in question is likely to infringe on fair trade order by restricting the freedom of choice of the employee or employee, but it is not necessarily necessary to establish a fair trade order or trade order.

The court below held that, in light of the following circumstances as stated in the court below's decision on the detailed reasons for checking the contents and results of each of the above orders, the act of a plaintiff who exclusively sells the manufacturing model of Daewoo Motor Co., Ltd., etc., was an act of selling an employee who forced the purchase of the relevant employee's vehicles by restricting the opportunity to choose the purchase of the relevant employee's vehicles and the type of the model, and thus constitutes an unfair trade act as an act of selling the employee's employees who forced the purchase of the relevant employee's vehicles by limiting the opportunity to choose the purchase of the relevant employee's vehicles and the type of the model.

In light of the above legal principles and records, the above measures of the court below are just, and there is no violation of the rules of evidence or misapprehension of legal principles as to unfair trade practices, as otherwise alleged in the ground of appeal. This part of the ground of appeal cannot be accepted.

2. As to the third ground for appeal

According to the reasoning of the judgment below and the records, the defendant recognized the plaintiff's act of selling employees as an unfair trade practice and imposed the penalty surcharge of this case on the above three business years, the defendant calculated the average sales of the plaintiff's previous three business years as 2,935,323,88,000 won based on the total sales of the business division, and determined that the amount of the penalty surcharge of this case does not constitute a disciplinary measure of this case on the ground that the amount of the penalty surcharge of this case does not exceed the maximum amount of the penalty surcharge of Article 24-2 of the Act, even if the amount of the penalty surcharge of this case exceeds the maximum amount of the penalty surcharge of this case.

However, even though the imposition of penalty under the Act has the characteristics of sanction, it is basically imposed in order to deprive the illegal economic benefits acquired by the violation of the Act (see Supreme Court Decision 99Du1571, May 28, 199). In the imposition of penalty under Article 55-3(1) of the Act, considering this, the contents and degree of the violation and the size of profits acquired by the violation in addition to the period and frequency of the violation shall also be taken into account. As such, the amount of penalty surcharge imposed in relation to unfair trade is required to maintain a balance not only with the degree of illegality determined based on the specific form of the unfair trade act, but also with the scale of the profit resulting from the violation of the principle of proportionality, and if such balance is lost, it may constitute deviation and abuse of discretionary power by violating the principle of proportionality.

However, examining the reasoning of the judgment below in light of the records, although the amount of the penalty surcharge of this case imposed by the defendant is calculated by multiplying the average sales amount of the plaintiff for the three immediately preceding business years by a certain ratio according to the method stipulated in Article 24-2 of the Act and Article 9 (1) of the Decree, and the ratio is also not exceeding 2/100, which is the statutory maximum ratio as a whole, by applying the reverse reduction ratio as seen earlier as stipulated in the defendant's guidelines. However, in relation to the plaintiff's act of selling employees of this case, the amount of the penalty surcharge of this case imposed by the defendant, which is the unfair trade act of this case, is about 253 in total, and the total sales amount of the company's act of selling employees, is estimated to be about 20 billion won, it is clear that the transaction constitutes a certain ratio from the whole business size of the plaintiff, and that the specific amount is excessive by applying the whole sales amount of the plaintiff's business division and the ratio as defined in the above guidelines without considering the degree of profits acquired by the plaintiff.

Therefore, even if the amount of the penalty surcharge of this case does not exceed the upper limit by the method prescribed by the law and the Enforcement Decree, in light of the basic nature of the imposition of the penalty surcharge, which is the deprivation of illegal economic benefits, it may be deemed that it constitutes an excessive amount which has lost excessive balance between the amount of profit resulting from the plaintiff's specific unfair trade practices and the amount of the penalty surcharge of this case. This is also the same when considering the degree of illegality of the plaintiff's act of selling employees of this case. Even if the defendant's calculation of the penalty surcharge of this case is based on the above guidelines, it does not constitute a mere administrative rule inside the defendant.

Therefore, even though the imposition of the penalty surcharge in this case may be deemed to fall under the disposition of deviation or abuse of discretionary power that violates the principle of proportionality in terms of its amount, the court below, without examining the above points, concluded that the imposition of the penalty surcharge in this case does not fall under the deviation or abuse of discretionary power. Thus, this is ultimately a matter of course, which affected the conclusion of the judgment by either misapprehending the legal principles on the imposition of the penalty surcharge or failing to exhaust all necessary deliberations. The ground of appeal assigning

3. Therefore, the part of the judgment of the court below regarding the imposition of the penalty surcharge of this case is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal by the plaintiff is dismissed as it is without merit. It is so decided as per

Justices Yoon Jae-sik (Presiding Justice)