[1] The meaning of "abruptive act as an act of abuse of market controlling position" under the Monopoly Regulation and Fair Trade Act and the Enforcement Decree thereof, which is publicly announced by the Fair Trade Commission, refers to "abruptive act as an act of abuse of market controlling position

[2] The case holding that a CATV broadcasting business entity, which is a market dominant business entity in the program transmission market, cannot be viewed as a market dominant business entity immediately in the program transmission service market

[3] The method of determining the illegality of a disadvantageous act as an abuse of market dominant position by a market dominant enterpriser under Article 3-2 (1) 3 of the Monopoly Regulation and Fair Trade Act

[1] Article 3-2 (1) and (2) of the Monopoly Regulation and Fair Trade Act, Article 5 (3) 4 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act / [2] Article 3-2 (1) and (2) of the Monopoly Regulation and Fair Trade Act, Article 5 (3) 4 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act / [3] Article 3-2 (1) 3 of the Monopoly Regulation and Fair Trade Act

[3] Supreme Court en banc Decision 2002Du8626 Decided November 22, 2007 (Gong2007Ha, 1940)

Ebrod river Broadcasting Co., Ltd. (Attorney Oin-hun et al., Counsel for defendant-appellant)

Fair Trade Commission (Law Firm Dcaro temperature, Attorneys Park Ho-ho et al., Counsel for defendant-appellant)

Seoul High Court Decision 2007Nu10541 decided Nov. 8, 2007

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the second ground for appeal

A. Article 3-2(1)3 of the Monopoly Regulation and Fair Trade Act (hereinafter “the Act”) prohibits the abuse of a market dominant position by a market dominant enterpriser. Article 3-2(2)3 of the same Act prohibits another enterpriser’s business activities as one of such abuse of position. Moreover, Article 5(3)4 of the Enforcement Decree of the Monopoly Regulation and Fair Trade Act (hereinafter “Enforcement Decree”) provides that “an act unfairly interfering with business activities of another enterpriser by any means other than those prescribed in subparagraphs 1 through 3” as one of the “an act unfairly interfering with business activities of another enterpriser, and publicly notified by the Fair Trade Commission” (Article 202-6 of the Fair Trade Commission’s notification of May 16, 2002) provides that “an act of unfairly undermining the business activities of a market dominant position by any means other than those prescribed in subparagraphs 1 through 3 and the criteria for the examination of the abuse of a market dominant position by the Fair Trade Commission (Article 5(3)4 of the Enforcement Decree of the Act).”

On the other hand, in order to determine whether a specific business entity is a market-dominating position, the relevant market and the relevant regional market should be specific with respect to a certain business area in which the preferential competition relation may arise, and thereafter the possibility of control should be recognized. The relevant market-dominating business entity generally refers to the scope of the goods in competition that may prevent the market-dominating business entity from exercising its market power. Specifically, if the price of the goods traded increases or decreases to a certain extent for a considerable period of time, it refers to the gathering of the goods that can be purchased or sold in response thereto by representative buyers or sellers. The scope of the market is not only the price of the goods related to the trade, functions and utility of the goods, purchaser's awareness of their substitutability, and related decision-making behavior related to the purchaser's replacement, social and economic homogeneity and similarity of the business type recognized as a social and economic relationship. In addition, the relevant market-dominating business entity's awareness and sale of the goods should be determined in consideration of the market-dominating price and other relevant regional and economic conversion factors, but also the relevant market-related market price should be determined in a specific area or other area.

B. After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning. As to the Plaintiff’s assertion that it was erroneous for the Defendant to define the relevant product market as the program delivery market and limit the relevant regional market to Gangseo-gu Seoul (the Plaintiff, the Plaintiff, Inc., Ltd., the Plaintiff of the lower court on October 31, 2007, the merger of TBro Broadcasting Co., Ltd., the Plaintiff, and the change of its trade name to TBro Broadcasting, the current mutual name of the Plaintiff, at the same time, was changed to TBro Broadcasting), the Defendant’s determination of the relevant market and the recognition of the market dominant position of the Plaintiff was lawful.

In addition, the court below determined that the transaction structure of the paid broadcasting market is divided into the program forwarding market formed between platform operators such as CATV broadcasting business operators and television home shopping business operators, etc. and the program forwarding market formed between the service provider and the platform operator and the subscribers who view the program. However, the market for the program forwarding service market is formed separate from the program forwarding market, which is the latter platform operators such as the Plaintiff and Korea Home shopping company (hereinafter “Korea Home shopping”), and this market reaches the nation-wide scope, with the fact that many platform business operators with the region under its jurisdiction provide TV home shopping business operators with the program forwarding channel and receive the fee. The court below determined that the Plaintiff abused the status of the market-dominating business operator through the program forwarding service market, which is the opposite party to the neighboring market, and the other business operator, as the other party to the program forwarding service market.

C. First, considering the reasoning of the lower judgment on the instant product market and the relevant regional market in light of the above legal doctrine and the record, the lower court seems to be partly inconsistent with the reasoning of the lower judgment. However, in conclusion, the relevant product market of this case is a market separate from the program delivery market, and is a market that is separate from the program delivery market, and the Plaintiff’s platform business operator, such as the Plaintiff, receives fees from TV home shopping business operators, etc., and provides the program delivery service through the program delivery channel, and the scope of the relevant regional market of this case is the whole country.

However, as recognized by the court below by the court below, considering that the market dominant enterprise in the separate market transmitting market is not immediately a market dominant enterprise in the program forwarding service market, and as a whole, various circumstances including the transaction details, characteristics, and regulatory purposes, contents, and scope of the act of abusing the market dominant position in the program forwarding market, there is no ground to conclude that the plaintiff's market dominant power in the program forwarding market is transferred to the program forwarding service market. Therefore, the plaintiff cannot be viewed as the market dominant enterprise in the related market of this case where the act of changing the channel in this case was conducted.

Nevertheless, the judgment of the court below which held that the plaintiff is a market dominant position in the related market of this case is erroneous in the misunderstanding of legal principles as to the requirements for establishing the abuse of market dominant position by the market dominant enterpriser under Article 3-2 (1) 3 of the Act.

The ground of appeal pointing this out is with merit.

2. Regarding ground of appeal No. 1

A. The illegality of forced acts of abuse of market dominant position under Article 3-2 (1) 3 of the Act should be interpreted in accordance with the legislative purpose of "promotion of competition in a monopoly and monopoly market." Thus, the illegality of forced acts of abuse of market dominant position should be recognized only when a market dominant enterpriser makes all acts of forced acts of disadvantage with the intention or purpose of "promotion of competition in a monopoly and monopoly market." Thus, it is not sufficient to recognize illegality solely for the circumstance that a certain enterpriser suffered disadvantage as a result of an act of forced acts of forced acts of unfair intent or purpose against a specific enterpriser, who is the counterpart to an individual transaction, or as a result that a specific enterpriser suffered disadvantage, such as the occurrence of difficulties in business activities or possibility of suffering from difficulties or difficulties. Among them, the intention or purpose of artificially maintaining and strengthening the monopoly of the market, i.e., the intention or purpose of artificially restricting free competition in the market, which is to artificially affect the market order, and it can be recognized when forced acts of disadvantageous

Therefore, the defendant claiming that the act of compelling the disadvantage of a market dominant enterpriser constitutes an abuse of his position must prove that the act of compelling the disadvantage is likely to bring about the effect of restricting competition, and that there was an intention or purpose to such act. In the case where it is proved that the above act of compelling the disadvantage actually went into effect, it may be presumed that there was a concern about restricting competition at the time of the act of compelling the disadvantage, and that there was an intention or purpose to such act. However, if not, it should be determined comprehensively taking into account various circumstances such as the circumstance and motive of the act of compelling the disadvantage, the form of the act of compelling the disadvantage, the characteristic of the related market, the degree of disadvantage suffered by the other party to the disadvantage, the degree of the price and output in the related market, the change in the related market price and output, the degree of the disadvantage suffered by the other party to the disadvantage, and the intention or purpose to such act is likely to bring about the effect of restricting competition as seen above (see, e.g., Supreme Court en banc Decision 2002Du8626, Nov. 222,

B. As seen earlier, insofar as the Plaintiff cannot be deemed to have a market-dominating position in the pertinent market, it is unnecessary to further consider whether the instant channel change act is improper as an abuse of market-dominating position under Article 3-2 (1) 3 of the Act. However, even if the Plaintiff is in a market-dominating position in the relevant market, the lower court’s determination that the instant channel change act is improper as an abuse of market-dominating position under Article 3-2 (1) 3 of the Act is difficult to accept for the following reasons.

First of all, in light of the above legal principles, in a case where the effect of restricting competition is practically revealed due to the act of disadvantageous enforcement by a market dominant enterpriser, it is likely to do so, and it can be presumed that there was the intention or purpose of restricting competition to the market dominant enterpriser. The circumstances cited by the court below are all specific disadvantages that our home shopping was suffered by the Plaintiff’s act of changing the channel in this case, and it does not reach the situation that can be recognized that the result

In addition, even if a variety of circumstances revealed by the record, it is difficult to view that the Plaintiff’s intent or purpose to maintain and strengthen monopolys in the market, i.e., to artificially restrict free competition in the market, thereby exerting influence on the market order, and, objectively, it is difficult to deem that the Plaintiff committed a disadvantageous act that can be assessed as an act that may cause a risk of causing such restriction of competition.

Therefore, the judgment of the court below that the act of the plaintiff's channel change constitutes an unfair disadvantage enforcement by a market dominant enterpriser under Article 3-2 (1) 3 of the Act, is erroneous in the misapprehension of legal principles as to the illegality related to the act of disadvantageous enforcement by a market dominant enterpriser,

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)