[1] The contents of "disadvantageous treatment" that the Fair Trade Commission should determine in order to take administrative measures such as corrective orders against the acts of disadvantageous provision to enterprisers under Article 36 (1) [Attached Table] 6 (d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[2] The case holding that a corrective order issued by the Fair Trade Commission was unlawful on the ground that an urban railway corporation provides an advertising agency of subway with disadvantage not reflecting the ordinary management expenses due to the opening of subways, the occurrence of unbusiness stations, etc. in the advertising agency fees, without specifying the existence and scope of liability for damages

[3] The requirements to constitute "disadvantageous provision" under Article 36 (1) [Attachment Table] 6 (d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, and the criteria to determine whether such provision constitutes "disadvantageous provision"

[4] The case holding that the case holding that the case does not constitute an "disadvantageous offer" under Article 36 (1) [Attachment Table] 6 (d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act where an urban railroad corporation has completed the construction of subway platform reclamation advertising mold and demanded the advertising agency to unilaterally pay the expenses through mutual consultation procedures in the course of claiming for reimbursement from the advertising agency

[1] Article 23 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) provides that one of the unfair trade practices referred to in Article 23 (1) 4 provides that "an act of trading with the other party by unfairly taking advantage of his/her trading position" and Article 36 (1) [Attachment Table] subparagraph 6 (d) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 199) provides that "an act of offering disadvantage as one of the types of acts falling under Article 23 (1) 4 of the same Act" and "an act of offering disadvantage to the other party" or "an act of offering disadvantage to the other party" or "an act of offering disadvantage to the other party" or "an act of offering disadvantage to the other party" under Article 2 (1) 4 of the same Act, and "an act of offering disadvantage to the other party" or "an act of offering disadvantage to the other party" under Article 236 (2) of the same Act.

[2] The case holding that the Fair Trade Commission's corrective order was unlawful on the ground that an urban railroad corporation provided disadvantage not reflecting the ordinary management expenses of the advertising agency caused by the opening of subways and the occurrence of non-business stations in the process of concluding and implementing an advertising agency contract for subways on the ground that the corrective order was made in a state where the existence and scope of liability for damages was not specified

[3] In light of the provisions of Article 23 (1) 4 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999), and Article 36 (1) [Attachment Table] 6 (d) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 199), it is insufficient to say that the contents of the act are somewhat disadvantageous to the other party in order to constitute "Provision disadvantageous to the other party" under subparagraph 6 (d) of the same Article. Thus, as provided in items (a) through (c), it is difficult to say that the other party's act unfairly uses his position in his trade to the extent that it can be deemed identical to or altered the terms and conditions of the transaction, or at the same time it is likely to unfairly disadvantage the other party in light of normal trade practices, and whether the act unfairly disadvantage the other party should be determined by comprehensively considering the degree of the act in question, how the act in question affects the other party's practice.

[4] The case holding that, in case where an urban railroad corporation has completed the construction of subway platform reclamation advertising mold and demanded the advertisement agency to unilaterally pay the costs without adjusting the amount through mutual consultation procedures, it does not constitute an "disadvantageous offer" under Article 36 (1) [Attachment Table] 6 (d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of March 31, 1999) in full view of various factors such as the characteristics of the production and installation of the landfill advertising mold, the circumstances leading to the imposition of the costs for the production and installation of the advertising mold, the contents of disadvantages that may arise from the manufacturers, the degree of competition restriction on the transaction process between the parties concerned, the trade practice in the related industry, and the regulations of the relevant laws and regulations

[1] Article 2 subparag. 1, Article 23(1)4 and Article 24 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199); Article 36(1) [Attachment Table] subparag. 6(d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Mar. 31, 199); Article 2 subparag. 1, Article 23(1)4 and Article 24 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 1999); Article 36(1) [Attachment Table] subparag. 6(d) 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(1) [Attachment Table 6(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1639 of Mar. 19, 2194 of the former Monopoly Regulation and Fair Trade Act]

[3] Supreme Court Decision 96Nu18489 delivered on March 27, 1998 (Gong1998Sang, 1216) Supreme Court Decision 2000Du833 delivered on December 11, 2001 (Gong2002Sang, 294)

Seoul Metropolitan Government Urban Railroad Corporation (Attorney Kim Chang-chul, Counsel for defendant-appellant)

Fair Trade Commission (Law Firm Jeong, Attorneys Lee Jong-ki et al., Counsel for the defendant-appellant)

Manman Company, Inc.

Seoul High Court Decision 99Nu1238 delivered on June 13, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. As to the payment of additional expenses, such as ordinary management expenses, due to the opening notification, etc.

Article 23 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 199; hereinafter referred to as the "Act") provides that one of the unfair trade practices referred to in Article 23 (1) 4 provides that "an act of trading with another party by unfairly taking advantage of one's trading position." Article 36 (1) [Attachment] subparagraph 6 (d) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1621, Mar. 31, 199) provides that "an act of giving disadvantage to the other party" as one of the types of acts falling under Article 23 (1) 4 of the Act, and clearly provides that "an act of giving disadvantage to the other party" or "an act of setting or altering terms and conditions of trading or giving disadvantage to the other party in the course of its execution" or "an act of setting or removing disadvantage to the other party" under Article 23 (1) 1, 23 (1) 4 or 6 (4) of the Enforcement Decree of the Act.

The court below acknowledged that the plaintiff was a local government-invested public corporation in charge of the management and operation of 5, 6, and 8 of the Seoul Special Metropolitan City's 100 billion won for the first 7th anniversary of the 1995's implementation of the 2nd 9th 7th 5th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 196th 6th 1st 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 7.

Furthermore, the court below held that in the advertising agency contract of this case where the plaintiff's business period was guaranteed for three years from the first unification, the plaintiff's business period reduction due to the opening of the advertisement agency contract of this case was calculated on the basis of the expenses to be naturally borne by the plaintiff, and it is difficult to view that there is a proximate causal relation with the opening of the business and the occurrence of the non-business station due to the plaintiff's causes attributable to the plaintiff, and that the ordinary damages incurred by the intervenor due to the plaintiff's causes attributable to the plaintiff are the balance obtained by deducting all expenses such as monthly advertising agency fees, etc. which the intervenor was exempted from the expenses of the plaintiff during the period of the opening of the advertisement in this case's business due to the delay in opening of the business, which was lost during the period of the plaintiff's loss. The court below held that the plaintiff's liability for damages cannot be viewed as unlawful even if there was no special legal relation between the plaintiff's losses and the non-performance of the first opening of the business without any specific scope.

In light of the records and relevant statutes and the above legal principles, the recognition and judgment of the court below is justified, and there is no illegality that affected the conclusion of the judgment by misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to abuse of trade position.

We cannot accept this argument in the grounds of appeal.

2. As to the portion of the cost of manufacturing and installing a landfill advertising mold without consultation

In light of the structure of Article 23(1)4 and (2) of the Act, Article 36(1) [Attachment Table] 6(d) of the Enforcement Decree of the Act provides that the content of the act is somewhat unfavorable to the other party in order to be subject to the "providing disadvantage to the other party" under subparagraph (d) of Article 36(1) of the Enforcement Decree of the Act. As provided in items (a) through (c), one party is deemed to have established or changed the terms and conditions of transaction by unfairly using his/her position in his/her trade to the extent that it can be the same as compulsory purchase, coercion of provision of benefit, coercion of sale target, and compulsory sale target, etc., and thereby, it must be deemed that it might unfairly disadvantage the other party in light of normal transaction practices, thereby impeding fair trade (see Supreme Court Decision 2000Du833, Dec. 11, 2001). Whether the act was an act unfairly unfavorable to the other party should be determined in full view of the intention and purpose of the act in question, circumstances leading to the act in question, the degree of competition between the parties concerned.

In accordance with the records, the Plaintiff may recognize that the platform reclamation advertising framework, which was decided to be manufactured and installed by the Intervenor on December 29, 195, was somewhat unfavorable to the intervenors by demanding the Intervenor to unilaterally pay the costs through mutual consultation procedures with the Intervenor, following the completion of construction works by the Seoul subway Construction Headquarters. However, since the landfill advertising framework was of the nature to be installed in the subway construction process, it was inevitable in the process of construction works in advance, the Seoul subway Construction Headquarters in charge of the said construction works made and installed the advertising mold, and thereafter made it reimbursement to the intervenors through the Plaintiff. The installation cost of KRW 478,984 is also determined by applying the designated unit price by item in the process of purchase of official procurement. Since the Plaintiff sent the public notice to the Intervenor for payment of the production cost, the Plaintiff’s exchange of opinions between the Plaintiff and the Intervenor throughout several times, and the Plaintiff’s party to the transaction without any disadvantage caused by the Plaintiff’s production and installation of the mold to the extent that it would unfairly affect the Plaintiff’s final production and installation of the mold and its disadvantage.

In light of the above legal principles, the part of the court below's explanation that the plaintiff's act should be viewed as a whole, including a series of costs-saving process after the plaintiff's act was conducted, and should be judged as to whether it constitutes an abuse of trade position. However, it is just in conclusion to accept the plaintiff's claim of this case seeking revocation of the corrective order of this case on the ground that the plaintiff's act does not constitute an abuse of trade position due to an unfavorable provision of trade position under Article 23 (1) 4 and (2) of the Act, Article 31 (1) [Attachment Table] 6 (d) of the Enforcement Decree, and there is no error in the misapprehension of legal principles as to an abuse of trade position due to a violation of the rules of evidence,

The grounds of appeal cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)