(영문) 서울고등법원 2016.10.19. 선고 2014누65471 판결

1) The Plaintiff is a business operator who runs the manufacturing and wholesale business of functional health foods, multi-level marketing business, etc., and is prescribed by Article 2 subparagraph 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”). The Plaintiff’s general status is as follows.

( base, unit: 12.12.12.31.

A person shall be appointed.

2) The Plaintiff sells a total of KRW 1,000 products from various product groups. From 2008 to 2012, the Plaintiff’s sales status for each product group are as follows.

(unit: Cost of detention)

A person shall be appointed.

(b) Market status;

In this case, since the act of the plaintiff is related to multi-level marketing, the multi-level marketing market is first reported, and the health functional food market, which is the main product sold by the plaintiff, shall be considered as the health functional food market.

1) Current status of multi-level marketing markets

(A)market size and structure;

The number of domestic multi-level marketing enterprises has been 419 in 2002 and 112 in 2005 to 66 in 2008, and thereafter maintained a certain level of 71 in 2009 and 70 in 2011. This seems to be due to the strengthening of the regulation on the multi-level marketing market through the revision of the Door-to-Door Sales Act (hereinafter referred to as the " Door-to-Door Sales Act") in 2002, the number of enterprises has increased to 94 as the requirements of multi-level marketing have been amended by the Act on Door-to-Door Sales, Etc. (hereinafter referred to as the "Door Sales Act").

The gross sales of the multi-level marketing market have increased by KRW 3.2 billion in 2012, compared to KRW 2.9,04.4 billion in 201, compared to KRW 389.4 billion in 201. The main cause of the increase in the sales of the upper 4 companies, including the Plaintiff (2.4.9 billion) was the Plaintiff. The upper 10 major sales of the multi-level marketing business account for approximately 80% out of total sales of KRW 3.2,93.6 billion in total sales of the market. In particular, the Plaintiff’s sales (2.4.5 billion in total sales) accounts for about KRW 31% in total sales, namely, the market share reaches about KRW 39.39% based on the total sales sales of the entire market, based on the upper 10 company sales of the multi-level marketing business as of December 2012.

(unit: 1 million won, thousand persons)

A person shall be appointed.

B) The number of salespersons

As of the end of 2012, the total number of multi-level marketing salespersons registered as of the end of 2012 increased by 4.69,000 and 5.45,000 (13.1%) more than 4.150,000 in 201, and the upper 10 persons account for about 74.2% out of the total number of salespersons in multi-level marketing markets. The number of salespersons of the Plaintiff constitutes approximately 31% out of the total number of salespersons.

C) Bonuses

Support allowances paid by multi-level marketing companies have increased as a total of KRW 1.68.8 billion in 201, compared to KRW 9,48.2 billion in 201. The upper 10 companies paid KRW 8,66.6 billion in total support allowances. From 1060,000 to 11.182,000 (11.4%) in 200,000 won in total, KRW 1.25.5% in total, KRW 946 billion in total, and KRW 94 billion in total, KRW 94.4 billion in total, KRW 9.4 billion in total.

(d)Sales items;

Major items sold by multi-level marketing companies are health foods, cosmetics, communications products and consumer products, and alternative companies sell various kinds of products such as health foods and consumer products.

2) Current status of the market for functional health foods

(A)market scale;

The domestic market for health functional foods has been growing since the enforcement of the Health Functional Foods Act on August 2003, and the domestic market for health functional foods has increased by 17.3% for five years from 2007 to 2011. There is no accurate statistics on the scale of the domestic market for health functional foods including domestic production and import, but the scale of the market estimated based on the sales of top 23 companies in 2012 by the Health Functional Foods Association is approximately 4.5,05.2 billion won.

B) Market structure

The statistics on the market share for the health functional foods market are difficult to find. However, according to the relevant data, the Korea Ginseng Corporation took the market share of 13 to 14% from 2008 to 2012 in the consumer health products market. From 2008 to 2012, the Plaintiff maintained two parts of the market share at least 10% from 2008 to 2010 and became the three-class business since 201. As of 2012, the Korea Hen News Korea Ltd has the market share of 12.9% in 201 and 9.2% in 200. The market share of the Korea Native News Korea, the fourth business entity, the market share of which is the four-class business entity, does not extend to the majority of the Plaintiff, the Plaintiff, who is the third business entity. In addition, a business entity with less than 1% market share accounts for a half of the total market.

C. The Plaintiff’s compensation system

1) Proceeds earned by the Plaintiff’s multi-level marketing salesperson is divided into retail profits and bonuses. Retail profits is calculated by calculating the difference between the price purchased from the Plaintiff and the price at which the seller sells the pertinent goods to consumers; bonuses are calculated based on the transaction performance and other education and training performance of the goods purchased by the Plaintiff and its subordinate salespersons; and bonuses are calculated according to the internal standards publicly notified in advance to the salesperson based on the sales performance and other training performance

2) Bonuses are largely divided into bonuses based on their sales activities, bonuses based on sales activities of subordinate salespersons, and bonuses based on education and training for subordinate salespersons. A bonus, rather than bonuses based on their sales activities, accounts for the growth of subordinate salespersons, such as sales activities, rather than bonuses based on their own sales activities, accounts for a larger percentage of bonuses paid for the growth of subordinate sales organizations.

3) The monthly bonus system that the Plaintiff pays to the salesperson based on the sales performance of the salesperson and its subordinate salespersons is as follows.

A person shall be appointed.

D. The plaintiff's act

(1) the prohibition of sale of less than the purchase price

From September 1, 2008, the Plaintiff prohibits multi-level marketing salespersons belonging to the Plaintiff from selling goods at a price lower than the price purchased from the Plaintiff.

On May 30, 2008, the Plaintiff announced the multi-level marketing salesperson of its website that "from September 1, 2008, the sales or supply of goods or services at prices lower than those purchased or supplied to him/her shall be prohibited," and that "the Code of Ethics and the Code of Conduct" 4 is amended. Of the code of ethics and the code of conduct of multi-level marketing salespersons, Article 4 Section ABO's liability and the rule of authority are defined as follows.

4. ABO’s responsibility and authority 4.2. statutory and regulatory rules: ABO must comply with all domestic laws, regulations and regulations in the operation of the ABS project, and shall proceed with the project after obtaining necessary authorization or permission, if necessary under the relevant laws and regulations. ABO shall not engage in any conduct that may impair the image or reputation of the ABS and shall not operate an illegal enterprise or organization or participate in the activities of such enterprise or organization. ABO shall not operate the ABO in a manner contrary to the relevant laws and regulations, including the following, and shall not compel, direct, or recommend another ABO to operate the project under the same method.4.24.24.

2) Sanctions against multi-stage salesmen who violate the provision prohibiting the sale of less than the purchase

The Plaintiff’s ethical principles and action guidelines provide that the Plaintiff may impose sanctions such as termination of qualification, suspension of qualification, restriction on qualification, warning, and other necessary measures against multi-level marketing salespersons under his/her jurisdiction when violating the guidelines in Section 11. Here, deprivation of status as a multi-level marketing salesperson, suspension of qualification and restriction on qualification means suspension of or restrictions on qualifications for multi-level marketing salespersons to purchase activities or support activities, etc. for a certain period of time, and warning is paid to multi-level marketing salespersonss.

The plaintiff has taken the following disciplinary measures against his multi-level marketing salespersons on the ground that the plaintiff violated the provisions of his own code of ethics and the code of conduct to prohibit the sale of less than the purchase:

A person shall be appointed.

E. The defendant's disposition

On September 18, 2014, the Defendant applied Articles 29(1) and 31 of the Fair Trade Act to the following reasons: (a) from September 1, 2008, the Plaintiff set the lowest price purchased from the Plaintiff through the code of ethics and action guidelines; and (b) took unfavorable measures against multi-stage salesmen who sold goods at lower prices; (c) designated and forced resale price; and (d) issued a corrective order as shown in the attached Form on the ground that there is no special justifiable ground for such designation.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 14 (where there are branch numbers, including branch numbers; hereinafter the same shall apply), Eul evidence Nos. 1, 2, 5 and 6, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

(a) Whether it constitutes a resale price maintenance;

1) Summary of the Plaintiff’s assertion

A) The Plaintiff prohibited a multi-level marketing salesperson from selling to consumers at a price lower than that purchased from the Plaintiff through the instant act. This differs from the purpose and effect of the general resale price maintenance that prohibits sales at a price lower than that determined by the recommended consumer price or the supplier. This is because multi-level marketing salespersons does not guarantee the sales margin of multi-level marketing salespersons, and it is possible to conduct normal competition at a price higher than that determined by the Fair Trade Act. Accordingly, the Plaintiff’s act does not constitute a resale price maintenance regulated by the Fair Trade Act.

B) There is no coercion for the Plaintiff’s act. The bonuses for the activities of the lower sales organization were not related to the resale of the lower sales organization, but were erroneous in determining whether the act was enforced including sanctions related to the bonus for the activities of the lower sales organization.

C) According to the provisions of the Door-to-Door Sales Act, multi-stage salesmen are formally independent economic agents, and are engaged in transactions with customers on their own name and account. However, in substance, the relationship between multi-stage sellers and multi-stage salesmen is equivalent to the relationship between multi-stage sellers and multi-stage salesmen. Therefore, the relationship between multi-stage sellers and multi-stage salesmen cannot be equally regulated as to general manufacturers and distributors. Therefore, the instant act does not constitute

2) Determination

Comprehensively taking account of the facts acknowledged earlier, the evidence adopted earlier, and various circumstances recognized by the purport of the entire pleadings, the purchase price from the Plaintiff designated by the Plaintiff as the base price for the prohibition of sale to the affiliated multi-stage salesmen falls under the transaction price subject to Article 29(1) of the Fair Trade Act, and it is recognized that the Plaintiff forced multi-stage salesmen to sell the price below the above purchase price through the code of ethics and action guidelines. Furthermore, the relationship between the Plaintiff and the affiliated multi-stage salesmen cannot be seen as the relationship corresponding to the consignment relationship between the Plaintiff and the affiliated multi-stage salesmen. Accordingly, the instant act satisfies the primary requirement for resale price maintenance under Article 2 subparag. 6 and Article 29(1) of the Fair Trade Act, even

A) Whether the transaction price was determined or not

Article 2 subparag. 6 of the Fair Trade Act defines “the act of resale price” as “the act of compelling an enterpriser, who is a counterpart enterpriser or an enterpriser by next stage of transaction, to sell or provide goods or services only at the price determined in advance, or making transactions subject to binding conditions thereon for such purpose.” Article 29(1) of the Fair Trade Act provides that “no enterpriser shall engage in a resale price maintenance unless there exist justifiable reasons: Provided, That this shall not apply to the act of price maintenance which prevents an enterpriser from trading goods or services above a specified price: Provided, That the purpose of the Fair Trade Act is to promote competition, to promote consumer welfare; and Article 29(1) of the Fair Trade Act also aims to prevent an enterpriser from impeding consumer welfare by restricting the price competition at the stage of distribution by trading the goods or services with a pre-determined market price at the market price in advance (see Supreme Court Decision 2009Du9543, Nov. 25, 2010).

In light of the legislative purpose and contents of the relevant laws and regulations and the purport of prohibiting resale price maintenance, in a case where an enterpriser causes concerns over impeding consumer welfare by restricting price competition by designating a certain price or price according to a certain standard, it shall be deemed that the act of determining a price under Article 29(1) of the Fair Trade Act constitutes “act of determining a price of goods”. The Plaintiff’s circumstance that the designated price, as seen above, is neither a consumer price nor a transaction partner’s profit is guaranteed. Accordingly, it does not affect the judgment. Accordingly, the Plaintiff’s “purchase price from the Plaintiff who designated a multi-level marketing salesperson to whom the Plaintiff belongs as the base price for the prohibition of sale falls under the minimum resale price under Article 29(1) of the Fair Trade Act. The Plaintiff’s assertion in this part

B) Whether compulsory action is enforced

An enterpriser’s act of unilaterally designating a resale price in selling goods to a re-seller and ordering and notifying that the goods be sold as price is not illegal if it is merely presented as a reference price or desired price. However, if it is accompanied by a means to ensure its effectiveness as to the fact that the re-seller should comply with the instruction and notification, it constitutes a resale price prohibited under Articles 2 subparag. 6 and 29(1) of the Fair Trade Act (see, e.g., Supreme Court Decision 2000Du1829, May 31, 2002).

The Plaintiff may put the subordinate multi-level salesman at a disadvantage, such as deprivation of qualifications to receive bonuses for a certain period through termination of qualifications, suspension of qualifications, and restriction on qualifications, on the ground that he/she committed an act contrary to the measures of resale price maintenance based on the code of ethics and action guidelines, and there are cases where imposing sanctions as above. According to the above, the Plaintiff’s act constitutes resale price maintenance accompanied by coercion, and the Plaintiff’s act constitutes a resale price maintenance, and it cannot be deemed that there was any error in the Defendant’s judgment regarding coercion solely on the grounds cited by

C) Whether there is a relationship equivalent to a consignment relationship

According to the Door-to-Door Sales Act, a multi-level marketing salesperson may withdraw from a multi-level marketing without any condition (Article 22(4) of the Door-to-Door Sales Act), and a multi-level marketing business entity shall not aid or aid a multi-level marketing salesperson to commit prohibited acts under the Door-to-Door Sales Act (Article 23(2) of the Door-to-Door Sales Act). A multi-level marketing business entity must notify multi-level marketing salespersons of the relevant provision so that multi-level marketing salespersons do not violate the provisions regarding prohibited acts under the Door-to-Door Sales Act when a multi-level marketing business entity recruits multi-level marketing salespersons or sells goods, etc. to consumers. A multi-level marketing business entity is obligated to compensate for property damage inflicted upon other multi-level marketing salespersons or consumers as a consequence of neglecting the above duty of disclosure (Article 28(1) and (2) of the Door-to-Door Sales Act). Further, multi-level marketing business entities are obliged to explain information on multi-level marketing business entities when selling goods, etc. (Article 7 and Article 16).

Comprehensively taking account of the following circumstances acknowledged by the aforementioned evidence and the purport of the entire pleadings based on the content and purport of the relevant laws and regulations regarding multi-level marketing, it cannot be deemed that the relationship between the Plaintiff and its affiliated multi-level marketing salespersons falls under substantially consignment or consignment consignment, and thus, it is difficult to apply exceptions to the regulations on resale price maintenance under the Fair Trade Act. The Plaintiff’s allegation in this part is rejected.

① The so-called Pyram sales organization (Pyram S.) shall pay certain money or valuables to join a sales organization or take over valuable goods, limit the return of paid money or valuables. The revenue of the sales organization is mainly generated from inviting subordinate salespersons to recruit subordinate salespersons, and thus, a person who has joined the organization in the form of spreading the organization, regardless of his own sales activities, is able to obtain enormous profits from subordinate salespersons' activities, and has become a member of the sales organization once he/she solicits the organization to recruit subordinate salespersons, regardless of his/her subordinate salesperson activities, and eventually, the organization itself is excessive to recruit assistant members, and ultimately causes consumer damage. Since various regulations on multi-level marketing under the Door-to-Door Sales Act are likely to become a sales organization that causes consumers to become a member of the sales organization in a successive and phased manner, the purpose of protecting consumers' rights and interests is to prevent the multi-level marketing organization from becoming a multi-level marketing organization from becoming a member of the sales organization. Accordingly, the purpose of multi-level marketing organization is to ensure the relationship between multi-level marketing salesperson and multi-level marketing salespersons under the Act.

② According to the review guidelines 2. D., if a multi-level marketing salesperson designates a selling price to a trustee at the time of the consignment sale, the consignee is required to sell the goods in his/her name, profit or loss from the sale to the consignee who is the owner of the goods and services, and the seller of the goods is required to be a person who acts as a business, such as taking charge only for fees. According to the above, whether the multi-level marketing salesperson falls under the consignment sale should be determined depending on whether the actual subject of ownership of the goods and services and the subject of actual risk are a truster or trustee. However, according to the evidence evidence No. 2 and No. 6, multi-level marketing salesperson’s multi-level marketing salesperson’s act is not a multi-level marketing salesperson’s sales price to obtain full ownership of the goods and to obtain the sale price of the goods from the Plaintiff, and it is difficult to view that the multi-level marketing salesperson’s act is not a multi-level marketing salesperson’s stock or exchange with the other party to the sales contract. Accordingly, it is difficult to view that multi-level marketing salesperson’s’s sales charges are paid to the Plaintiff’s.

(b) the existence of justifiable reasons;

1) Summary of the Plaintiff’s assertion

The Plaintiff’s major product market in which the Plaintiff is dealing is promoting competition among trademarks, and the Plaintiff’s market share is below 10%. The instant act plays an essential role in multi-level marketing and thereby facilitating service competition other than the price among multi-level marketing belonging to the Plaintiff. In addition, the Plaintiff’s act of this case is legitimate as it satisfies all the requirements for resale price maintenance exceptionally permitted, given that the instant act has a positive impact on the increase in consumer welfare, by maintaining the Plaintiff’s sales organization, a new business operator having difficulties in holding distribution channels due to the existing large-scale marketing stores, etc. enter the market through the Plaintiff, thereby expanding consumers’ right to choose goods in the market.

2) Determination

The minimum resale price maintenance may be exceptionally allowed in cases where there are justifiable grounds, such as promoting competition between trademarks in the relevant product market and increasing consumer welfare, even though it appears to restrict competition in the relevant trademark. Whether such justifiable grounds exist should be determined by comprehensively taking into account the following: (a) whether competition between trademarks is activated in the relevant market; (b) whether competition among trademarks is promoted; (c) consumers’ selection of goods is diversified; and (d) whether new enterprisers can easily enter the relevant product market by smoothly securing the distribution network; and (b) the burden of proof regarding such competition lies on the relevant business owner (see, e.g., Supreme Court Decision 2010Du9976, Mar. 10, 201).

Based on these legal principles, comprehensively taking account of the facts acknowledged earlier, the evidence adopted earlier, Gap evidence No. 13, Eul evidence No. 10-5 or 10-10, and various circumstances acknowledged by the purport of the entire pleadings, it is insufficient to view that the Plaintiff’s act of this case, based on the following judgment solely on the grounds that the grounds that the Plaintiff was aware of, is insufficient to deem that there was sufficient reason to offset the consumer welfare reduced due to the instant act. Accordingly, the Plaintiff’s assertion is without merit.

A) Status of competition between trademarks in the relevant market

In light of various circumstances, such as the size and structure of the multi-level marketing market and the health functional food market as seen earlier, the Plaintiff’s market share, the characteristics of the products sold by the Plaintiff, and the Plaintiff’s business method, etc., it is insufficient to readily conclude that the Plaintiff’s competition between trademarks in the product market that the Plaintiff handles through multi-level marketing is sufficiently limited or distorted due to the instant act. The Plaintiff’s act does not have the effect of undermining consumer welfare because the market share secured in the relevant market is low. Moreover, there is no evidence suggesting that the Plaintiff’s act would ultimately have the effect of undermining consumer welfare by restricting the price competition among multi-level marketing salespersons. Rather, the effect of directly impeding consumer welfare by restricting the price competition among multi-level marketing salespersons. Examining the Plaintiff’s act based on the respective product market sold by the Plaintiff separately from the percentage of the multi-level marketing market, it is difficult to view that the Plaintiff’s act was objectively proven solely on the grounds cited by the Plaintiff.

(b) whether competition in services, other than prices, is facilitated;

Multi-level marketing shall, in principle, use a sales method in which a seller directly visits consumers to provide information and services on goods. Multi-level marketing salespersons provide information on goods by visiting consumers and recommending products suitable for consumers' marks and purposes of use, or using advantage of direct sales methods, such as demonstration, sampling provision, post-management, etc. The Plaintiff also constitutes a major product group. In particular, health functional foods, cosmetics, household appliances, etc., which the Plaintiff sells are accompanied by an explanation on their efficacy and methods of use. As can be seen, the provision of services via face-to-face with the consumers of the multi-level marketing salesperson belonging to the Plaintiff can be a means of competition other than the price, but considering the characteristics of the products sold by the Plaintiff and the nature of the direct sales method, such provision shall be deemed to be provided regardless of the act of this case.

In the absence of the instant act, the Plaintiff asserts that, as a result, a number of subordinate salespersonss are unable to continue their sales activities before entering into a service competition, it does not cause competition. However, as seen earlier, it is difficult to see that the Plaintiff’s assertion in light of the Plaintiff’s ex post facto allowance system, etc., and it is rather difficult to see that, even if certain results occur, it is the result that the price was more important than other service elements for the consumers who choose multi-level salespersonss to purchase the Plaintiff’s product, and that the instant act is an essential role in promoting the service competition.

If there is no limit on the minimum selling price, such as the instant act, multi-level marketing salespersons may attempt a price competition with other multi-level marketing salespersons through a preferential price discount, but if such price competition does not have any competitiveness, it may seek a way to conduct a service competition. As a result, it may be sought from the beginning to seek a way to attempt a service competition with a seller that can give more satisfaction than the reduced price discount to consumers instead of the price competition. This is a natural form of action of the seller that can be presented in the competition market. As alleged by the Plaintiff, even if it is impossible or difficult to sell less than the purchase price or in the case of a majority of subordinate salespersons that are difficult, even if it is impossible to sell less than the purchase price, the service competition between multi-level marketing salespersons is attempted through the foregoing method, and therefore, it is reasonable to deem that the service competition between multi-level marketing salespersons exists even

The Plaintiff asserts that the instant act plays a role of inducing multi-level marketing salespersons belonging to the Plaintiff to simultaneously compete with the normal price competition and service competition by protecting subordinate salespersons whose price competition is less than the purchase price. However, in light of the aforementioned factors, it is difficult to view that the Plaintiff’s evidence alone, based on the evidence submitted by the Plaintiff, facilitating the fair price competition and service competition other than the normal price competition, or increasing consumer welfare by facilitating service competition. The Plaintiff’s assertion on this part is rejected.

C) Whether it is easy for new suppliers to enter the market

원고는 1991년 설립된 이후 2008년 구입가 미만 판매금지정책을 시행하기 이전까지도 국내 다단계판매 시장에서 선두업체로 자리매김하며 판매조직을 발전시켜 왔다. 을 제10호증의 5 내지 8의 각 기재에 의하면 국내 상위 다단계업체들인 한국허벌라이프, 뉴스킨코리아, 유니시티코리아 등의 각 윤리강령이나 미국 암웨이의 행동지침에서 소속 다단계판매원들에게 구입가격 미만의 판매를 금지하는 규정을 두고 있지 않음을 알 수 있다. 1963년에 발행된 미국 암웨이의 행동지침에는 "판매자는 상업적 할인을 승인받은 경우를 제외하고 암웨이 제품을 일반인들에게 판매할 때 지정된 소매가격보다 낮은 가격으로 판매하여서는 아니 된다(No distributor shall sell products sold under the Amway label for less than the specified retail price, when making sales to persons who are not distributors, except where commercial discounts are authorized to be given)."라는 규정을 두었으나 미국 연방거래위원회(Federal Trade Commission)가 1979. 5. 8.자 미국 암웨이에 대한 결정(93 F.T.C. 618, 1979 WL 198944)에서 위와 같은 재판매가격유지행위를 금지하도록 명하였고, 이후 미국 암웨이는 소속 다단계판매원들에 대하여 어떠한 가격 통제도 실시하지 않고 있다. 뿐만 아니라 프랑스, 독일, 캐나다, 호주, 뉴질랜드, 인도, 남아프리카공화국, 우크라이나, 대만, 말레이시아 등 다른 국가의 암웨이도 이 사건 행위와 같은 가격 통제를 실시하고 있지 않는 것으로 보인다. 원고 측은 원고 이외의 다른 국내 다단계업체나 다른 국가의 암웨이가 원고와 같이 구입가 미만 판매금지정책을 시행하고 있다는 점을 인정할 자료를 제출하지 못하고 있다. 위와 같은 사정을 고려하면 이 사건 행위가 원고와 같은 다단계판매조직의 특성상 요구되는 필수적인 가격 정책에 속한다고 볼 수는 없다.

The plaintiff asserts that the act of this case is a minimum device necessary for the existence and development of the plaintiff who operates a multi-level marketing organization by operating the support allowances system, and thereby, that the plaintiff's organization can provide consumers with new distribution channels other than the existing distribution channels such as large marinas or department stores by developing the plaintiff's organization. However, the act of this case cannot be viewed as an essential system for maintaining the plaintiff's sales organization. However, even if the plaintiff's multi-level marketing activity provides a distribution channel to a new business operator due to the plaintiff's multi-level marketing activity, it is only the positive effect of the new business on the market, and it is difficult to readily conclude that the act of this case is likely to immediately facilitate the new business operator's entry into the market.

D) Whether consumers are diversified to choose goods

The Plaintiff’s assertion that the Plaintiff’s development of the Plaintiff’s organization would result in a variety of choice of goods by the Plaintiff’s development is difficult to accept as long as the instant act is not necessarily required for the development and maintenance of the Plaintiff’s multi-level marketing organization. The Plaintiff’s multi-level marketing organization’s demand for establishment of countermeasures against the Plaintiff by concerns over sales below the purchase price of the Plaintiff’s sales by other salespersons shows that many consumers wishing to purchase at a lower price even without the purchase price of the goods sold by the Plaintiff. Rather, it is reasonable to view that the instant act would result in the Plaintiff’s loss of the opportunity to choose from among the goods provided by the goods provided by the Plaintiff, even though there is no high price in terms of the Plaintiff’s sales organization, while there is no high price in terms of the goods provided by the Plaintiff, it is evident that the Plaintiff’s multi-level marketing organization’s demand for establishment of countermeasures against the Plaintiff is detrimental to consumer welfare

(e) Other reasons,

(1) The Plaintiff asserts that it is necessary to prohibit the sale of less than the purchase price in order to control the so-called speculative phenomenon to achieve such short-term performance. However, even if certain multi-stage salesmen permit the sale of less than the purchase price, as seen earlier, only the small number of multi-stage salesmen located in the boundary between the payment rate of bonuses in the Plaintiff’s bonus system where the sales price is a stairs, and thus, it seems that only the small number of salespersons who actually purchased less than the purchase price would be smaller than the small number of salespersons. The upper-tier sales revenue would be unreasonable to prevent the Plaintiff’s sales of the sales price as well as their retail profit derived from the increase in sales performance of the lower-level multi-stage salesmen. In light of the above, even if the Plaintiff’s act of purchasing the lower-level multi-stage salesmen, it can be seen that the Plaintiff’s act of purchasing the lower-level multi-stage salesmen is more desirable to prevent the Plaintiff’s sales of the sales price as an independent sales salesperson’s sales price.

(2) The Plaintiff asserts that the instant act is justifiable inasmuch as the sales between multi-level marketing salespersons prohibited under the Door-to-Door Sales Act may cause trade without restriction, and sales below the purchase price may constitute unfair salt sales prohibited under the Monopoly Regulation and Fair Trade Act. In light of the circumstances of health care, it is difficult to readily conclude that the instant act is interrupted and thus the transaction between multi-level marketing salespersons is activated. Moreover, even if the Plaintiff’s assertion is likely to cause such phenomenon, it is difficult to accept the allegation that the restriction on prohibited acts under the Door-to-Door Sales Act and the regulations related to the sale of salt prices under the Fair Trade Act should be applied separately to prevent such side effects.

(3) The Plaintiff asserts that leaving a superior salesperson’s use of bonuses as financial resources for price competition may constitute a discriminatory treatment, which is a single unfair trade practice. However, the bonus paid by the superior salesperson pursuant to the Plaintiff’s compensation system, which is paid according to the Plaintiff’s transaction performance and other educational and training performance, cannot be evaluated as having the same different supply unit price for superior salespersons and subordinate salespersons, based on the fact that the superior salesperson used the bonus as a means of price competition, and thus, the Plaintiff’s use of the bonus as a means of price competition. Furthermore, the above problem is likely to be resolved by appropriately improving the guidelines for the support scheme or internal trading.

(4) The Plaintiff emphasizes the need to protect a multi-level marketing organization. However, even if the instant act is prohibited, there are some problems arising from sales activities below the upper sales price, it is difficult to deem that there is a need to protect the Plaintiff’s multi-level marketing salesperson or sales organization even when the Plaintiff’s multi-level marketing salesperson or sales organization despite the waiver of free competition, which is worthy of protection by the Fair Trade Act.

(5) The Plaintiff asserts that, if the purchase price of less than the purchase price is permitted, services, such as explanation and demonstration of products, are provided to subordinate salespersons and actual purchase of products may result in side effects from high-level salespersons. However, the so-called free-of-sale phenomenon is not only a problem between multi-level marketing salespersons, but also a matter that may normally arise when competition in the purchase of products is accompanied with the purchase of products. Even if the instant act contributes to a certain part of resolving the problem of free-of-performance, it is not permissible to accept the instant act solely on the ground of such reason. Therefore, it cannot be said that the Plaintiff’s prohibition of sale of less than the purchase price does not apply to the Plaintiff in order to prevent free-of

(6) The Plaintiff’s circumstance that the relationship with the multi-level marketing salesperson itself can be seen as a relationship corresponding to a consignment relationship or a consignment relationship cannot be accepted, as seen earlier. Even if there are characteristics different from the relationship between the general distributor and the above relationship, it does not constitute a ground to justify the instant act.

3. Conclusion

The plaintiff's claim is dismissed on the ground that it is without merit.

Judges

Judges Lee Dong-won

Judges Yoon Jong-dae

Judge Lee Jae-soo

Note tin

1) The former requirement for multi-level marketing was ① recruitment by solicitation, ② recruitment by three or more stages, ③ payment of bonuses, ④ consumer is required to join as a salesperson, ⑤ occurrence of retail profits, and ④ revision of the law in 2012, and ⑤ requirements were deleted.

2) For convenience, the indication of “stock company” was omitted.

3) As a drug of the Valin Vale, a cumulative score means a cumulative score based on the results of determining the qualifications of the Plaintiff’s multi-stage salesman and the Boner level.

4) The code of ethics and the code of conduct are provisions that describe the matters to be observed by the Plaintiff’s ABO (referring to the Plaintiff’s multi-level marketing salesperson, and the Plaintiff’s multi-level marketing salesperson). It constitutes a contract between the Plaintiff and the ABO upon entering into a contract with the Plaintiff, and all ABO agrees to comply with the code of ethics at the time of entering into a contract with the Plaintiff.

5) Other parts than the suspension of qualification, which are different from the restriction of qualification, are subject to support allowances for the previous assistant salesmen even during the limitation of qualification, but the suspension of qualification is not so.

6) For convenience, arguments regarding the remainder except for ‘existence of justifiable cause’ are addressed here.