[1] The purpose of Article 23(1)4 of the Monopoly Regulation and Fair Trade Act, etc., which provides for an enterpriser’s “act of trading with another party by unfairly taking advantage of his/her trade position,” and the standard for determining whether he/she unfairly taking advantage of his/her trade position

[2] Whether the “voluntary purchase” under Article 36(1) [Attachment 1] 6(a) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act includes creating an objective situation in which the other party cannot purchase (affirmative)

[1] Article 23(1)4 and (2) of the Monopoly Regulation and Fair Trade Act; Article 36(1) [Attachment Table 1] subparagraph 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 22160, May 14, 2010); [Attachment Table 1] Article 36(1) [Attachment Table 1] subparagraph 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 22160, May 14, 2010) / [2] Article 36(1) [Attachment Table 1] subparagraph 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 22160, May 14, 2010)

[2] Supreme Court Decision 2000Du9359 decided Jan. 25, 2002 (Gong2002Sang, 593)

C&M (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Han, Attorney Ahn Byung-jin, Counsel for defendant-appellant)

Seoul High Court Decision 2011Nu11862 decided April 26, 2012

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

The grounds of appeal are examined.

Article 23(1)4 and (2) of the Monopoly Regulation and Fair Trade Act and Article 36(1) [Attachment 1]6 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22160, May 14, 2010) provides that an enterpriser shall engage in a transaction with the other party by unfairly taking advantage of his/her trading position. The purpose of Article 23(1)4 and 23(1)6 of the same Act is to prohibit an enterpriser from taking advantage of his/her position and disadvantage in the other party’s trade activities in order to ensure fair trade between different trading partners in the real transactional relationship with the other party in a relatively superior position or at least in a position that has considerable influence on the other party’s trade activities. Whether an “unfair use of his/her position” in this context includes the situation of the market and trading in which the party is in existence, gap in the overall business capacity, characteristics of the transaction, intent, effect of the act in question, degree of disadvantage of the other party in the market, and the pertinent type and position of the other party.

According to the evidence of the court below, the plaintiff is in a position to have a significant impact on trading activities of 13 TV program providers (hereinafter referred to as "P program providers"), such as P program providers, etc. in the pay broadcasting market, and the plaintiff's channel strategic team which entered into a contract for channel transmission with the PP business operators, sold the advertising hours of this case to the PP business operators from 2007 to 2009, but it is recognized that there is a significant difference in business ability between the five major program providers among the PP business operators, and there is no direct evidence that the plaintiff made a speech or behavior to put disadvantages in the channel programming when refusing to purchase the advertising broadcasting hours of this case, or there was no direct evidence that some of the PP business operators were in need of using the broadcasting hours from the plaintiff to make use in the channel advertising, and the necessity and effect of the PP program providers were insufficient to find that there was no objective correlation between the plaintiff's purchase of the advertising broadcasting hours of this case and the plaintiff's purchase of the advertisement of this case.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of the logical and empirical rules, or by misapprehending the legal doctrine

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)