[1] The standard for determining whether the act of a franchisor to have all franchisees participate in discount sales events as part of sales promotion activities is an act of disadvantageous provision under Article 36(1) [Attachment 1] 6(d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[2] The standard for determining whether the act of a franchisor to provide goods or services for a franchisee to itself or a person designated by him/her or to restrict the change of a supplier constitutes forced purchase under Article 36(1) [Attached Table 1] 6(a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[3] The standard for determining whether a franchisor's act of purchasing and installing facilities of a store in a franchise store is within the necessary scope to achieve the purpose of a franchise business in determining whether a franchisor's act of compelling purchase under Article 36 (1) [Attachment 1] subparagraph 6 (a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act is forced.

[4] Criteria to determine whether the act of a franchisor to suspend or refuse the supply of goods or services or business support to a franchisee constitutes a refusal of transaction pursuant to Article 36(1) [Attachment 1] subparagraph 1(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[1] Whether a franchisor’s act of having all franchisees participate in a discount sales event conducted as part of the sales promotional activity is an act that unfairly gives disadvantages to franchise business operators by taking advantage of the transactional position, and which is likely to hamper fair franchise business transactions, must be determined specifically by taking into account the following circumstances: contents of a franchise agreement, purpose and contents of a discount sales event, specific allocation of expenses incurred in relation to discount sales event, whether a franchisee reflects the franchisee’s intent to participate in the discount sales event and share of expenses incurred in the discount sales event, probability and contents of losses that may be incurred to franchisees due to the exercise of discount sales, and trade practice

[2] Whether a franchisor allows a franchisee to be supplied with the commodities or services of the franchisee or a person designated by the franchisor or restricting the alteration of the supplier is within the extent necessary to achieve the purpose of the franchise business, the purpose of the franchise business and the contents of the franchise agreement, the payment method of the franchise fee, the relationship between the products and the supplier partner of the franchise business, the relation between the products subject to the franchise business and the products restricted by the other party, the need for technical management, standard management, distribution management, and hygiene control for the management of the image and quality of the products, shall be determined by determining whether such act impedes the franchisee to arbitrarily purchase the products

[3] Whether the act of a franchiser to purchase and install facilities such as indoor and outdoor decoration of a store in a franchise store to the extent necessary to achieve the purpose of the franchise business shall be determined based on the purpose of the franchise business and the contents of the franchise agreement, the payment method of the franchise fee, the relationship between the goods or services subject to the franchise business and facilities, the need for technical management, standard management, distribution management, and hygiene management to ensure the uniform image of the franchise business, and the need for the maintenance of the same quality of the goods, etc., and the determination shall be made as to whether there is an obstacle to securing the uniform image of the franchise business and to guarantee the same quality of the goods.

[4] In order for a franchiser to suspend or refuse the provision of goods or services or business support to a franchisee in light of the characteristics of franchise business, to constitute an unfair trade practice, it shall be the case where the franchiser deprives the franchisee of opportunities for continuous trading of the franchise and makes it difficult for the franchisee to conduct business activities or unfairly takes measures to secure effectiveness in order to achieve the objectives of unfair control over the franchisee, unless there is a serious reason that it is difficult to continue the franchise business transaction due to the reasons attributable to the franchisee, such as breach

[1] Article 23(1)4 of the Monopoly Regulation and Fair Trade Act, Article 36(1) [Attachment 1] subparagraph 6(d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 17564 of March 30, 202), Article 36(1) [Attachment 1] subparagraph 6(a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act / [2] Article 23(1)4 of the Monopoly Regulation and Fair Trade Act, Article 36(1) [Attachment 1] subparagraph 6(a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 17564 of March 30, 202) / [3] Article 23(1)4 of the Monopoly Regulation and Fair Trade Act, Article 36(1) [Attachment 1] Article 36(1)4 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 17564 of March 30, 1764]

[4] Supreme Court Decision 2003Du7484 decided Jun. 9, 2005 (Gong2005Ha, 1147)

Law School Co., Ltd. (Law Firm Bag, Attorneys Gyeong-sung et al., Counsel for the plaintiff-appellant)

Fair Trade Commission

Seoul High Court Decision 2000Nu2183 delivered on December 4, 2001

The part of the judgment of the court below regarding the order to publish the violation of the Act is reversed, and the part of the lawsuit is dismissed. The part of the judgment below regarding the corrective order regarding the compulsory purchase of goods listed in the annexed list is reversed, and this part of the case is remanded to

1. As to the order to publish a violation of law

The records reveal that the defendant revoked ex officio the order to publish the violation of law among the dispositions of this case on March 8, 2002, which were pending in the trial of this case. Thus, the defendant does not have the interest to seek revocation as to this part.

2. As to the corrective order

A. As to the first ground for appeal

Whether an act of having a franchisee participate in a discount sales event conducted by the franchiser as part of sales promotion activities is an act of unfairly giving disadvantage to the franchise business operators by taking advantage of the position in trade, and which is likely to hamper fair franchise business transactions, shall be determined by specifically taking into account all the circumstances, such as the terms of the franchise store agreement, the purpose and contents of the event for discount sales, specific details of allocation of expenses for discount sales, participation in the event for discount sales and the allocation of expenses for discount sales, whether the franchisee reflects the franchisee's intent to participate in the event for discount sales, the probability and contents of losses that may arise from the exercise

The following circumstances established by the lower court and the record reveal that the Plaintiff’s “Rules on the Operation of Franchisees” incorporated into a franchise agreement is based on the following facts: (a) sales promotion activities are basically a franchisor, planning, execution, and supervision; (b) franchisees are obligated to participate in nationwide sales promotion events; (c) there is an exceptional circumstance that the Plaintiff may not participate in such events; (d) the Plaintiff’s use of sales promotional activities as part of the Plaintiff’s sales promotional activities in order to ensure continuous growth and profitability; and (e) there is a need to implement the instant discount sales event. The instant discount sales event aims at not only at the franchisor’s interest as an exercise by all franchisees but also at the maintenance and development of the entire franchise organization; and (e) the use of the franchise’s image to increase a significant portion of the profits from the exercise of discount sales; (b) in light of the cost rate, it can be deemed that there was no evidence to acknowledge that there was a loss of sales or net profits of the franchisees prior to the exercise of discount sales rights by the Plaintiff and the Plaintiff’s use of discount sales profits prior to the Plaintiff.

The judgment of the court below to the same purport is just and acceptable, and there is no error of law by misapprehending the legal principles as to the act of abuse of trade position as an abuse of trade position, as otherwise alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

Whether a franchiser allows a franchisee to be supplied with sold goods or services by itself or a person designated by it or restricting the other party to the supply of goods or services within the extent necessary to achieve the objectives of the franchise business shall be determined by considering the purpose of the franchise business and the contents of the franchise agreement, the payment method of franchise fees, the relationship between the goods and the other party to the franchise business, the need for technical management, standard management, distribution management, and hygiene control to control the image and quality of the goods, etc., and the franchisee should not arbitrarily purchase the goods or services within the extent necessary to prevent the franchisee from maintaining the same quality as the uniform image of the

원심은 채택 증거를 종합하여, 판시와 같은 사실을 인정한 다음, 원고가 가맹점사업자로부터 매출액의 일정비율에 상당하는 금원을 가맹금으로 받는 것이 아니라 가맹점사업자에게 공급하는 원ㆍ부재료의 가격과 원고가 구입하는 원ㆍ부재료의 가격의 차액에 해당하는 금원을 가맹금으로 하는 사업구조를 취하고 있으므로 모든 원ㆍ부재료를 가맹점사업자가 개별적으로 직접 구입하도록 한다면 원고의 가맹사업의 존립 자체가 불가능하게 되는 점, 원고가 가맹사업의 통일적 이미지와 중심상품인 햄버거 등 패스트푸드의 맛과 품질을 전국적으로 동일하게 유지하기 위하여는 탄산시럽(사이다, 콜라), 후르츠칵테일, 밀감, 천연체리, 가당연유, 오렌지쥬스, 빙수용찰떡, 모카시럽, 케찹(팩), 피클, 그라뉴당, 마스타드, 슈가(팩), 카넬콘, 후라잉오일, 액상제리 등 16개의 일반공산품에 대하여 지속적으로 유통과정, 유통기한 등을 관리ㆍ통제할 필요성이 있다고 보이는 점, 원고가 위 16개의 일반공산품을 가맹점사업자에게 공급함에 있어서 그 가격을 시중거래가격 이상으로 책정하여 부당한 이윤을 취득하였다는 점을 인정할 자료도 없는 점 등을 종합적으로 고려하면, 원고가 가맹점사업자에게 위 16개의 일반공산품을 원고로부터만 공급받도록 하는 것은 가맹사업의 목적달성에 필요한 범위 내의 통제로서 거래상의 지위를 이용하여 부당하게 거래상대방으로 하여금 구입할 의사가 없는 상품을 구입하도록 강제하는 행위에 해당한다고 할 수 없다고 판단하였다.

In light of the relevant provisions and the legal principles as seen earlier, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding facts against the rules of evidence or by misapprehending the legal principles as to the forced purchase of trade position as an abuse of trade position.

However, the lower court determined that, for the same reasons as the above 16 general industrial products, allowing the Plaintiff to be supplied with the above 5 general industrial products to the Plaintiff only from the Plaintiff on the grounds of the same reasons as the above 16 general industrial products, such as gas bags, polyba, cleaning paints, cleaning paints, and cases (hereinafter “K-5”), it cannot be deemed as an act of unfairly compelling the other party to purchase goods using the transactional position to the extent necessary for attaining the objective of the franchise business.

In light of the following circumstances revealed by the court below and the records, the use of the above five general industrial products is not related to the Plaintiff's quality and quality equality, which is the central product of the Plaintiff's franchise business, and the share of the above five general industrial products in the general industrial products supplied by the Plaintiff to the Plaintiff, and even if the Plaintiff presents quality standards and freely purchases the above five general industrial products, it cannot be seen as an obstacle to its use or function. In light of the circumstances cited by the court below, allowing the Plaintiff to supply the above five general industrial products only from the Plaintiff, even if considering the circumstances cited by the court below are considered, it is difficult to say that it constitutes an act of forcing the Plaintiff to purchase the products that the Plaintiff did not intend to purchase from the other party by unfairly taking advantage of its transactional position.

Nevertheless, the court below erred by misapprehending the legal principles on the illegality of the act of coercion of purchase as an abuse of trade position, which decided that the plaintiff's provision of the above five general public products to the plaintiff only from the plaintiff does not constitute the act of coercion of purchase.

C. Regarding ground of appeal No. 3

Whether the act of a franchiser to purchase and install facilities, such as interior decorations, etc., of a store to be established in a franchise store, or the person designated by it is necessary to achieve the purpose of the franchise business shall be determined based on the purpose of the franchise business and the contents of the franchise contract, the payment method of the franchise fee, the relationship with the goods or services subject to the franchise business, the need for technical management, standard management, distribution management, and sanitary control for securing the uniform image of the franchise business and maintaining the same quality of the goods, and the franchisee shall be determined by determining whether the act of the franchiser to arbitrarily purchase or install such facilities may interfere with securing the uniform image of the franchise business and guaranteeing the same quality of the goods.

In full view of the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that the main equipment, such as freezing, cooling, cooling, cooling, call tweet, sweet, ice sweet, sweet, ice swelthynet, postlothnnet, micro-swelgnet, etc. is related to the maintenance of the same quality as that of the Plaintiff’s franchis’s uniform image of franchis, and that the main equipment is related to the maintenance of the unit image of the Plaintiff’s franchis; the main equipment needs to be supplied at a time consistent with the opening time of the franchis; it is reasonable to ensure the Plaintiff’s freedom to select seven franchisees at the time of the Plaintiff’s request to the Plaintiff as the contractor; the Plaintiff’s act of purchasing and installing the equipment within the Plaintiff’s franchis to the extent that it was unreasonable to recognize that the Plaintiff’s purchase of equipment and installation of equipment within the Plaintiff’s franchis.

In light of the relevant statutes and the legal principles as seen earlier, the fact-finding and judgment of the court below are just and acceptable. In so doing, contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to forced purchase as an abuse of trade position.

However, the lower court determined that it did not constitute an act of unfairly compelling the purchase and installation of store facilities by taking advantage of the transactional position in a franchise business to the extent necessary to achieve the purpose of the franchise business, to allow the Plaintiff to supply the said five facilities to the Plaintiff only from the Plaintiff on the same grounds as in the main room equipment and interior works, with respect to one chair, tables, garbage, cash register, and computer equipment (PC).

In light of the following circumstances revealed by the facts established by the court below and the records, the above five equipment and uses are not related to the identity of the plaintiff's uniform image or main image of the franchise business and quality, and the share of the above five equipment in the equipment supplied by the plaintiff to the franchisee, and even if the plaintiff presents quality standards for the above five equipment and freely purchases them to the franchisee, the use or functions of the above five equipment cannot be seen as impeding the above five equipment. Considering the circumstances cited by the court below, it is difficult to say that allowing the plaintiff to purchase or install the above five equipment only from the plaintiff within the extent necessary for the accomplishment of the purpose of the franchise business, and therefore, it constitutes an act of unfairly compelling the purchase and installation of the five equipment and facilities from the plaintiff's own or the person designated by the plaintiff by taking advantage of the transaction status.

Nevertheless, the court below erred in the misapprehension of legal principles as to the illegality of the act of coercion of purchase as an abuse of trade position, which decided that the plaintiff's act of allowing the plaintiff to purchase or install the above five facilities only from the plaintiff or the business operator designated by the plaintiff does not constitute the act of coercion of purchase.

D. Regarding ground of appeal No. 4

In light of the characteristics of franchise business, in order for a franchiser to suspend or refuse the provision of goods or services or business support to a franchisee to constitute an unfair trade practice, it is necessary to deprive the franchisee of opportunities for continuous trading and make it difficult for the franchisee to conduct business activities or to achieve the objectives of unfair control, etc. against the franchisee, even though there is no serious reason that it is difficult to continue the franchise business transaction due to reasons attributable to the franchisee, such as breach of the contract by the franchisee.

According to the facts and records established by the court below, the non-party's act of keeping and selling juice juice jus of other company's manufacture at his own Daejeon store violates Article 9 (1) 3 and Article 6 (1) of the franchise agreement, and false interview in the non-party's television countries violates Article 9 (1) 2 of the franchise agreement. On the other hand, the non-party's act of compelling a franchisee to purchase part of the general products and store facilities within the non-party's recommendation constitutes an abuse of rights as stated in Article 9 (1) 2 of the franchise agreement, but it is difficult to view that the non-party's act of exercising the plaintiff's internal juice 2's internal juice 9 of the franchise agreement as an abuse of rights, even if the contents of the domestic juice 2's recommendation include some matters that are not appropriate as the recommendation of the franchisee, it is difficult to view that the non-party's act of exercising the plaintiff's internal juice 1 of the franchise agreement constitutes an abuse of rights.

On the other hand, the keeping, sale and false interview of non-designated goods are prejudicial to the essential part of the franchise agreement, and thus it constitutes a serious reason for making it difficult to continue transaction. Furthermore, the trust relationship between the plaintiff and the non-party who is the franchisor and the non-party, due to the above act of the non-party, has already been collapsed. In light of the above circumstances, there is no evidence to deem that the plaintiff's exercise of the right to terminate the franchise agreement was abused with the intent to make it difficult for the non-party to conduct business activities, or that it was made unfairly as a means to secure its effectiveness in order to achieve the purpose prohibited by the Act, the termination of the franchise agreement of this case cannot be deemed as

Nevertheless, the court below erred in finding that the submission of a proposal, (2) overdue payment, and (3) the presentation of a bill constitutes a reason for termination of a franchise agreement on the grounds as stated in its holding, but the conclusion that the termination of the franchise agreement of this case does not constitute a refusal of transaction as an unfair trade practice is just and acceptable, and there is no error in the misapprehension of legal principles as to mistake of facts or refusal of transaction due to violation of the rules of evidence, as alleged in the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the order to publish the violation of law is reversed, and since this court is sufficient to judge, the lawsuit against this part is dismissed, and the part regarding the corrective order regarding the compulsory purchase of goods listed in the attached list is reversed, and this part of the case is remanded to the Seoul High Court, and all remaining appeals are dismissed. It is so decided as per Disposition by the assent of all

Justices Lee Kang-tae (Presiding Justice)