Hyundai U.S. Co., Ltd. (Attorney Yoon In-sung et al., Counsel for the defendant-appellant)

Fair Trade Commission (Seoul Law Firm, Attorneys Kim Jong-soo, Counsel for defendant-appellant)

August 24, 2018

1. The plaintiff's claim is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The Defendant’s imposition of enforcement fines of KRW 1,342,40,000 as indicated in the attached Table No. 2018-069 against the Plaintiff on February 5, 2018 shall be revoked.

1. Basic facts

(a) Details of corrective measures against the combination of enterprises in the original case;

The Defendant: (a) determined that the combination of enterprises which the Plaintiff acquired on December 27, 2011 the shares 98.58% of the global cable broadcasting company (hereinafter referred to as “original case’s combination”) could substantially restrict competition in the regional pay broadcasting market (e.g., port, etc.; (b) violated Article 7(1) of the Monopoly Regulation and Fair Trade Act (hereinafter referred to as “Fair Trade Act”); (c) decided on March 14, 2013 by the plenary session’s resolution No. 2013-046 on March 14, 2013; and (d) decided to take corrective measures from March 14, 2013 to December 31, 2016; and (d) decided to individually subscribe to the broadcast in the region’s name (hereinafter referred to as “individual increase in the subscription price”); and (e) prohibited the individual subscribers from raising the subscription price (hereinafter referred to as “contractor’s subscription price”); and (e) prohibited the individual subscribers from raising the subscription price.

(b) Acts, etc. of Gyeongbuk Broadcasting;

(i) Imposing an increase in monthly receiving fees on an organization contractor;

A) On March 14, 2013, a service of the first written decision on the trial was rendered by raising the fee by either directly raising the monthly receiving fee from 85 organizations contractors or newly installing the terrestrial common antenna equipment maintenance fee (hereinafter “instant maintenance fee”), as described in paragraphs (1) and (2), from April 2013 to March 2015, immediately after receipt of the written decision on the trial.

(1) From April 2013 to March 2015, 2015, the Gyeongbuk Broadcasting directly increased 100% (2,200 won, 4,400 won) from 33% (3,300 won, 400 won) to 100% (2,200 won, 4,400 won) to 44 group contractors, including “Yan apartment,” etc. of the Roli Broadcasting from April 1, 2013 to March 2015.

(2) Gyeongbuk Broadcasting: (a) newly established the instant maintenance and repair fees for 41 group contractors, such as “Tryp” from April 2013 to March 2015, as indicated in Table 2, as indicated in Table 2, and imposed the said fees from KRW 1,100 to KRW 4,400, thereby raising the consumer price rate (1.3%) exceeding the consumer price inflation rate (1.3%).

Table 2: Table 2 omitted>

B) Meanwhile, the Gyeongbuk Broadcasting refunded to the relevant organization policyholders the amount of the increased amount of the receiving fee and the amount of the instant maintenance and repair fees, over the period from December 2, 2014, April 5, 2016, and October 24, 2016.

(ii) Imposing an increase in monthly receiving fees on an individual contractor;

A) From February 2, 2014 to July 7, 2014, the Gyeongbuk Broadcasting imposed a monthly receiving fee on 363 individual contractors, raising the monthly receiving fee from one month to five months prior to the time agreed to increase the receiving fee under the contract for the use of the Roli Broadcasting Services. From February 2014 to July 2016, five individual contractors were subject to an increase of the monthly receiving fee, despite the absence of an agreement to increase the receiving fee under the contract, 3).

B) Meanwhile, on September 2016, the Gyeongbuk Broadcasting refunded all of the increases in receiving fees to each of the relevant individual contractors on September 368, 2016.

C. Details of the plenary session Resolution No. 2016-317 (hereinafter “original adjudication”) on November 21, 2016 (hereinafter “original adjudication”) by the Defendant

B. On November 21, 2016, the plenary session’s resolution on November 21, 2016, the Defendant imposed a non-performance penalty calculated as stated in the attached Table 3 of the Act on the Enforcement Decree of the Fair Trade Act on Gyeongbuk Broadcasting, which was the subject of the decision of the lower court, on the following: (a) the Defendant was ordered to take corrective measures pursuant to Article 16 of the Fair Trade Act in violation of Article 7(1) of the same Act, and did not implement the corrective measures within the prescribed period; and (b) the Defendant imposed a non-performance penalty on Gyeongbuk Broadcasting

Table 3> Details of calculation of enforcement fines of the original decision

The rate of imposition (1,303 days) (6) of enforcement fines prior to the increase or decrease of 2/10,516,525,300 (30 won less than 100 won) of enforcement fines of 14,361,567,780 won for enforcement fines of 14,367,780 won for enforcement fines of 14,436,100 won for enforcement fines of 1,436,100 won for final enforcement fines of 90% reduction of 1,436,10,000 won for enforcement fines of 2/10,525,300 before reduction or exemption (30 won for enforcement fines of less than 10 won) from April 1, 2013 to October 24, 2016.

Note 4) Standard amount

(v) the period of default;

Note 6) Ratio of imposition

Note 7) Aggravation and Mitigation

Note 8) Additional mitigation

(d) Judgment revoking a disposition imposing charges for compelling compliance by the original adjudication becomes final and conclusive, etc.;

1) On December 21, 2016, the Gyeongbuk Broadcasting filed a lawsuit seeking revocation of a non-performance penalty on the ground that the disposition imposing a non-performance penalty by the original adjudication was unlawful, such as uniformly calculating the period of default at the time of final refund, regardless of the timing of resolving the violation and its content (No. 2016Nu81255). On December 29, 2016, the said lawsuit pending, the Plaintiff merged the Gyeongbuk Broadcasting and took over the said litigation procedure.

2) On October 11, 2017, the court held that the Defendant’s failure to take corrective measures is the time when the increase of receiving fees was suspended, i.e., when the failure to take corrective measures was suspended, not the date when receiving fees were fully refunded, but the date when the failure to take corrective measures was suspended, so as to prevent the harm of restricting competition caused by the combination of enterprises, not the prohibition of holding a receiving fee increased during the period of corrective measures, and thus, it is reasonable to view that the Defendant’s failure to take corrective measures was the time when the failure to comply with the duty of omission ordered in the corrective measures was terminated. Accordingly, the Defendant’s calculation of the non-performance period, which is the basis for imposing enforcement fines, was erroneous in the judgment of erroneous determination of the facts constituting the basis for imposing enforcement fines, and accordingly, revoked the entire disposition imposing enforcement fines pursuant to the original adjudication (hereinafter “prior conduct”). The judgment was finalized on November 7, 2017, by the Defendant not filing an appeal against the above judgment (hereinafter “prior judgment”).

(d) Refund of enforcement fines;

As the previous judgment became final and conclusive, on November 10, 2017, the Defendant refunded KRW 1,436,100,000 to the Plaintiff, which was the full amount of enforcement fines for the original adjudication.

(e) Redetermination and imposition of charges for compelling compliance;

In light of the purport of the preceding judgment, the Defendant: (a) considered the date when the failure to take corrective measures was terminated as of July 9, 2016 when the increase of receiving fees was suspended; and (b) decided to set the enforcement fines by applying the same as the result of the lower judgment; and (c) imposed the enforcement fines calculated as shown in Table 4-069, supra, on February 5, 2018, by the plenary session Resolution 2018-069, the Defendant imposed the enforcement fines on the Plaintiff (hereinafter “instant disposition”).

Table 4 â…§ 4 of Enforcement Decree for Non-performance)

Enforcement fines to be reduced by 13,424,704,160 won for enforcement fines to be reduced by 1,342,40,000 won for enforcement fines to be reduced by 13,424,704,160 won for enforcement fines to be reduced by 30% prior to the increase or decrease of 2/10,000 won for enforcement fines to be imposed (1,218 days) from April 1, 2013 to July 31, 2016 (1,218 days) for non-performance periods of KRW 78,728,03,00 for non-performance period of KRW 78,00,00 for non-performance period of KRW 78,728,03,00 for non-performance period included in the main sentence

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 4, Eul evidence 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) In light of the Supreme Court Decision 201Du15750 Decided December 11, 2014, which held that a non-performance of corrective measures prior to the imposition of a non-performance penalty may not be imposed, in cases where the situation where the non-performance of corrective measures prior to the imposition of a non-performance penalty has been terminated, a non-performance penalty may not be imposed on the ground of Article 17-3 of the Fair Trade Act. The instant disposition against the Plaintiff is unlawful as a sanction against the non-performance of corrective measures, even if the situation where the non-performance of corrective measures prior to the imposition of the non-performance penalty was already resolved due to the reduction of the license fees, etc. reduction of the Plaintiff’s license fees, etc., and refund of the increased amount, which led to the reduction of the non-performance of the corrective measures in this case,

If Article 23-4(3) of the Enforcement Decree of the Fair Trade Act provides that enforcement fines may be imposed even after the termination of the violation of this Act, this is against the principle of statutory reservation and is null and void by exceeding the limit of delegated legislation under Article 17-3 of the Fair Trade Act, since it is not different from the imposition of penalty surcharges without any basis under the law. Therefore, the instant disposition made based on Article 23-4(3) of the Enforcement Decree

2) The obligation to pay non-performance penalty is a new and continuous nature that can be imposed only on the non-performance subject. The validity of the instant disposition has already ceased as the Gyeongbuk Broadcasting was merged into and terminated to the Plaintiff on December 29, 2016, and the facts pertaining to the obligation to pay non-performance penalty or non-performance of the obligation are not succeeded to the Plaintiff. Therefore, the instant disposition made against the Plaintiff, a third party, who is not the non-performance subject of the obligation, was unlawful.

3) A non-performance penalty should be imposed within 30 days from the end of the period specified in the corrective measure or within 30 days from the date on which it can be confirmed whether the corrective measure was implemented. However, the instant disposition, which was imposed with the above period, was unlawful.

4) Even if enforcement fines under the Fair Trade Act are imposed even in cases where the non-performance of corrective measures prior to the imposition of enforcement fines is terminated, unlike enforcement fines under other statutes, and even if it is possible to impose the Plaintiff, who is not the subject of non-performance of duties, the instant disposition is unlawful as it deviates from and abused discretionary power for the following reasons

A) Since the maintenance fees and receiving fees of this case are different in their nature, it cannot be deemed that the border broadcast increased the receiving fees in violation of the corrective measures of this case to impose maintenance fees on the contractor. Moreover, in the course of preparing a contract for an individual contractor by entrusting a third party with business, it is merely that there was an error in writing differently from the actual contents of the agreement of the council of occupants' representatives in the Gyeongbuk-dong, Nidong, and Nidong Housing Complex, and that there was an error that erroneously stated the contract differently from the actual contents of the agreement of the council of occupants' representatives, and thus, it cannot be deemed that the Gyeongbuk-dong Broadcasting increased the receiving fees in violation of the corrective measures of this case. The Defendant erred by recognizing the act not violating the corrective measures of this case, and found the fact that the period of calculating the enforcement fees was the premise for

B) Even if the Gyeongbuk Broadcasting violated the instant corrective measures, most of the acts of violation of the instant corrective measures among the acts of the Gyeongbuk Broadcasting were resolved around March 2015, and the necessity of sanctions was limited because it was not intentional. Nevertheless, the Defendant calculated enforcement fines by uniformly setting the period of non-performance on the ground that the increase in the license fees for five contracts, which is merely about 0.07% of the amount base, was finally terminated on July 31, 2016, was in violation of the principle of proportionality.

B. Determination

1) Whether enforcement fines can be imposed on the past non-compliance with corrective measures based on Article 17-3 of the Fair Trade Act

A) Details of the relevant statutes and developments leading to the amendment of the statutes

(1) According to the Fair Trade Act, any person shall not, either directly or through a specially related person under Article 11(1) of the Enforcement Decree of the said Act, engage in practices practically restricting competition in the field of trade (Article 7(1)); “acquisition or ownership of stocks of another company” constitutes a combination of enterprises (Article 7(1)1); and “acquisition or ownership of stocks of another company” refers to a combination of enterprises (Article 7(1)1); and the defendant may order the enterpriser (including the specially related person as the case may be) or the violator to take corrective measures (Article 16). One of the corrective measures provides, “Restrictions on the method of business or scope of business to prevent the harmful effects of restricting competition caused by the combination of enterprises” (Article 16(1)7); “any person who fails to perform corrective measures within the prescribed period after being subject to corrective measures pursuant to Article 16 (1)1; and “the person who fails to perform such measures within the prescribed period” shall be subject to the scope of “acquisition of the account books or charges for compelling compliance with Article 7(13)” per day.

On the other hand, the Defendant imposes a compulsory performance money on a person who fails to comply with a corrective measure, including “restriction on the business method or scope of business to prevent the harmful effects of restricting competition caused by the combination of enterprises” under Article 16(1)7 of the Fair Trade Act, where the corrective measure is a content ordering a certain obligation by a period such as each quarter and each business year, etc. (Article 23-4(3) of the Enforcement Decree of the Fair Trade Act).

(2) The enforcement fine system under the Fair Trade Act was newly introduced with the amendment of the Fair Trade Act by Act No. 5813 on February 5, 1999, and the said amendment had a penalty surcharge system (Article 17(3)) in addition to the corrective measures against those who conducted competition-restricting business combinations. However, the above amendment made the provision of penalty surcharge deleted, the sanctions for business combination were unified into corrective measures, and the enforcement fine system (Article 17-3) was newly established to enhance the effectiveness of the corrective measures.

B) Whether enforcement fines can be imposed on past non-compliance with corrective measures based on Article 17(3) of the Fair Trade Act

According to the language, structure, etc. of the above provisions regarding corrective measures and imposition of enforcement fines on a person who has violated the restriction on the combination of enterprises under Article 7(1) of the Fair Trade Act, the Fair Trade Act may order an enterpriser who has violated the restriction on the combination of enterprises to take corrective measures under Article 16. One of the above provisions is the restriction on the business method or business scope to prevent the harm of restricting competition caused by the combination of enterprises, and in detail, the duty of omission to prohibit any act for a certain period of time may be imposed on the restriction on the business method or business scope. The corrective measures in this case also impose the duty of omission for a certain period of time based on Article 17-3(1) and (2) of the Fair Trade Act and Article 23-3(3) of the

Even when considering the fact that the penalty surcharge system under the Fair Trade Act was deleted and the enforcement fine system was newly established and the statement in Gap evidence Nos. 5 through 8 submitted by the plaintiff, in light of the following circumstances, Article 17-3 of the Fair Trade Act provides that the person who was ordered to take corrective measures to order the duty of omission for a certain period pursuant to Article 16 of the same Act and fails to perform the duty of omission within the specified period shall be subject to the provision on the grounds that the enforcement fine may be imposed on the person who was ordered to perform the duty of omission within the specified period, and it shall not be deemed that the enforcement fine was suspended from the violation of the corrective measures prior to the imposition of the enforcement fine.

(1) The Plaintiff presented a precedent regarding enforcement fines under the Building Act (Supreme Court Decision 2015Du46598 Decided July 14, 2016), and the former National Land Planning and Utilization Act (amended by Act No. 13797, Jan. 19, 2016; hereinafter “former National Land Planning Act”) regarding enforcement fines under the former National Land Planning and Utilization Act (Supreme Court Decision 2013Du15750, Dec. 11, 2014), and the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Act on the Registration of Real Estate under Actual Titleholder’s Name”). However, there is no general law regarding enforcement fines under the current law, and there is no provision regarding enforcement fines under Article 20 of the former Building Act regarding enforcement fines under the same Act that the Plaintiff is subject to imposition of enforcement fines under the former Land Planning and Utilization Act, as well as the provision regarding enforcement fines under Article 50 of the former Act regarding enforcement fines under the same Act.

(2) Article 17-3 of the Fair Trade Act provides that the other party to the imposition of enforcement fines (a person who fails to comply within the prescribed period after receiving corrective measures) and the scope of imposition (which does not exceed the amount obtained by multiplying the amount under Article 17-3(1)1 through 3 by 3/10,000 per day) are delegated to the Presidential Decree as well as necessary matters concerning the remaining imposition, payment, collection, refund, etc., and where a person subject to the aforementioned corrective order complies with the order, the imposition of new enforcement fines shall be immediately suspended if he/she continues to violate the obligation after imposing a penalty surcharge with respect to the act of violating the obligation.”

(3) The Defendant may impose corrective measures on the duty of omission to prevent the negative effects of restricting competition caused by the combination of enterprises or to restrict the scope of business (Article 16(1)7 of the Fair Trade Act). However, in light of the purpose of the above corrective measures to prevent the negative effects of restricting competition caused by the combination of enterprises, the above provision is to prevent the negative effects of restricting competition caused by the combination of enterprises, not only consumers, but also competitors, etc., and to prevent the negative effects of restricting competition caused by the combination of enterprises. As long as a person liable for omission violates corrective measures, even if the person liable for failure fails to perform his/her duty after failing to perform his/her duty for a certain period of time, the negative effects of restricting competition caused by the combination of enterprises, which the person intended to achieve through the corrective measures, have already failed to achieve the purpose thereof within a certain scope. Considering the foregoing attitude of the corrective measures as stipulated in the Fair Trade Act, it is difficult to interpret that enforcement fines have not been imposed merely by suspending the violation before the imposition of enforcement fines, and it is difficult to readily conclude the violation of duty for correction or omission.

(4) If it is interpreted that the enforcement fine cannot be imposed for the period of non-performance because the non-performance of the duty was suspended after the non-performance of the duty during a certain period of time, the business operator subject to a corrective measure ordering a certain omission pursuant to Article 16(1)7 in violation of Article 7(1) of the Fair Trade Act may be exempted from the imposition of enforcement fine by suspending the non-performance of the duty when the Defendant starts examining the disposition imposing enforcement fine, and the provision on enforcement fine under the Fair Trade Act is not effective in relation to the case of ordering the non-performance of the duty.

C) Whether Article 23-4(3) of the Enforcement Decree of the Fair Trade Act violates the principle of statutory reservation and deviates from the limitation of delegated legislation

Article 17-3 of the Fair Trade Act provides for the scope of imposition with the other party who is the basic and essential matter concerning enforcement fines (as seen earlier, the current law does not have a general law concerning enforcement fines, and the precedents asserted by the Plaintiff are interpreted in accordance with the contents and structure of each provision, and does not directly apply to enforcement fines under the Fair Trade Act). As seen earlier, Article 17-3 of the Fair Trade Act provides that enforcement fines may be imposed on a person who fails to perform the duty of omission within a specified period after receiving corrective measures ordering the duty of omission for a certain period pursuant to Article 16 of the same Act. Accordingly, it is difficult to view that the Plaintiff violated the principle of statutory reservation under Article 23-4 (3) of the Enforcement Decree of the same Act, which provides for necessary matters concerning the imposition, payment, collection, refund, etc. of enforcement fines based on Article 17-3 (2) of the same Act, or deviates from the scope of delegation of the law. Therefore,

D) Sub-committee

As seen earlier, even if the act of violating the instant corrective measure was terminated by suspending the increase of receiving fees on July 31, 2016, prior to the instant disposition, the Defendant may impose a non-performance penalty on the instant corrective measure up to July 31, 2016, based on Article 17-3(1) and (2) of the Fair Trade Act and Article 23-3(3) of the Enforcement Decree of the Fair Trade Act.

2) Whether the obligation to pay enforcement fines is succeeded to the Plaintiff

A) In the event of a corporate merger, the rights and obligations of the merged company shall be deemed to be succeeded to all the surviving companies due to the merger, except where the transfer is not permitted by its nature, regardless of whether it is a private or public law relationship (see, e.g., Supreme Court Decisions 93Nu21231, Oct. 25, 1994; 2002Du1946, Jul. 8, 2004).

B) In light of the following facts and circumstances, it is lawful for the Defendant to make the instant disposition against the Plaintiff on the ground that the obligation to pay the charge for compelling compliance by Gyeong Broadcasting is of the nature succeeded to the Plaintiff, in view of the fact that there is no dispute, and the Plaintiff’s assertion against this point is without merit.

(1) In the case of a merger of corporations, the Plaintiff, which continues to exist after the merger, succeeds to the rights and obligations of Gyeongbuk Broadcasting (see Articles 530(2) and 235 of the Commercial Act; see Articles 530(2) and 235 of the Commercial Act; and the merger after division, is partly occurring within a specific scope under Article 530-10 of the Commercial Act; and there is no legal effect from the merger, which is a principle of comprehensive succession. However, the Supreme Court Decision 2006Du18928 Decided November 29, 2007, which presented by the Plaintiff as the basis of the merger, is inappropriate to be invoked in this case as a case concerning the division of a corporation). However, in the case of a merger, it is difficult to view that the status subject to a disposition of non-performance penalty, which was already imposed through the original adjudication prior to the merger, is not transferred due to its nature (the decision presented by the Plaintiff as the ground of this decision is inappropriate).

(2) In the preceding judgment, the imposition of enforcement fines by the original adjudication was entirely revoked, but the calculation of enforcement fines does not completely revoke the disposition imposing enforcement fines by the original adjudication, in view of the fact that it is the Defendant’s discretionary act, to the effect that it is no longer for the purpose of propertyizing enforcement fines, nor for the imposition of enforcement fines by the original adjudication.

(3) The Plaintiff owned 97.04% of the shares of Gyeongbuk Broadcasting from the time when the corrective measure of this case was imposed in relation to the combination of the principal case. Moreover, the Plaintiff’s merger of Gyeongbuk Broadcasting on December 29, 2016, which was after the Plaintiff filed a lawsuit seeking revocation of the imposition of enforcement fines by the original decision, and taking over the litigation procedures of the previous judgment. In light of the above facts, even if the instant disposition is taken against the Plaintiff, it is difficult to view that the Plaintiff could not have anticipated it, and it does not seem necessary to protect the Plaintiff otherwise.

3) Whether the time to impose the charge for compelling the performance has expired

A) When a disposition imposing a non-performance penalty is revoked by a judgment, a new disposition is imposed by re-calculated and newly depending on the purport of the judgment. The above procedure is not intended for the Defendant to impose a non-performance penalty newly calculated in accordance with the purport of the judgment and not to infringe upon the rights of the person subject to disposition, and it does not aim at granting the person subject to disposition a benefit with regard to the period for imposing a non-performance penalty provided for in Article 23-4(1) or (3) of the Enforcement Decree of the Fair Trade Act again. Therefore, where the disposition imposing a non-performance penalty is revoked by a judgment and the Defendant re-calculated and newly issues a non-performance penalty in accordance with the purport of the judgment, barring special circumstances such as where the Defendant significantly delays the imposition of a non-performance penalty without reasonable grounds, it constitutes “special reasons”

B) The latter part of Article 23-4(3) of the Enforcement Decree of the Fair Trade Act provides that “The imposition of a non-performance penalty shall be done within 30 days from the date on which it can be confirmed whether the non-performance penalty is implemented, except in extenuating circumstances.” In addition to the overall purport of pleadings in the evidence Nos. 1 and 2, the Defendant imposed a non-performance penalty by the original adjudication on the North Korean Broadcasting on November 21, 2016. This court rendered a judgment on October 11, 2017, which revoked the disposition imposing a non-performance penalty by the Defendant’s original adjudication. The above judgment became final and conclusive on November 7, 2017. The Defendant held a review for the second disposition in accordance with the purport of the above judgment, and concluded the disposition on January 10, 2018, and it can be acknowledged that the instant disposition was conducted on February 5, 2018, which is within 30 days from the date on which the said judgment became final and conclusive. Therefore, the Plaintiff’s special disposition did not appear to constitute grounds for delay in the instant disposition.

4) Whether the instant disposition was unlawful as it deviates from or abused discretionary power

A) Whether there was an error in finding a fact that constitutes the premise for the instant disposition

(1) First of all, the issue of whether the maintenance and repair fees of this case are deemed to have increased receiving fees in violation of the corrective measures in this case’s imposition of maintenance and repair fees to policyholders due to different nature from the receiving fees of this case. In addition to the purport of the entire pleadings in Gap’s Nos. 1, 2, and Eul’s No. 3 through 7, North Korea Broadcasting directly increased receiving fees or imposed maintenance and repair fees of this case on policyholders from April 2013. The amount imposed as receiving fees is KRW 0 to KRW 4,400, the amount imposed as receiving fees of this case is KRW 0 to KRW 4,400, KRW 400, KRW 400, KRW 20, KRW 400, KRW 200, KRW 300, KRW 400, KRW 200, KRW 400, KRW 400, KRW300, KRW 400, KRW20, KRW 40, 204, 30,204,

In light of the following circumstances that can be recognized in addition to the purport of the pleading as a whole, namely, (i) the Gyeong Broadcasting impose the nominal TV license fees and the instant maintenance and repair fees by dividing them, and the amount is less than 4,400, and the sum of both are less than 4,400, and (ii) the Gyeong Broadcasting and contract parties would have been aware that the amount of the fee and the instant maintenance and repair fees is increased in a lump sum without distinguishing the receiving fees from the instant maintenance and repair fees; (iii) the amount imposed as the nominal TV license fees and the amount imposed as the instant maintenance and repair fees are larger than KRW 0 to 4,400 for each contractor. In light of the above circumstances, it is reasonable to deem that the Plaintiff imposed the instant maintenance and repair fees under the recognition that the said difference was actually increased in the receiving fees. Accordingly, this part of the Plaintiff’s assertion is without merit.

(2) Next, in the process of preparing a contract for individual contractors by entrusting a third party with the affairs, it is merely erroneous in the entries different from the actual terms of the contract, and the Gyeongbuk Broadcasting will increase the receiving fees as stated in the above actual agreement. According to the evidence evidence Nos. 10 through 12, the Gyeongbuk Broadcasting will enter into an individual contract for new services with the residents living in the said housing complex for the first time, zymnin, zynin, zynin, gynin, Samsung Cirra, Samsung LGra, Samsung LGra, hGlle, 8, 9 units, and the head of each tenant representative and management office for the housing complex for the use of the information and communications, for the period of 3 months from August 1, 2012 to July 2015 (the initial contract for services to be provided to the residents living in the housing complex for 10 months from the date of the supply of the 3rd cable TV, 3 months from the initial contract for services to the residents living in the housing complex for 4 months.

However, each statement of the above evidence reveals the following facts or circumstances that can be acknowledged by adding the purpose of oral argument to the whole purport of oral argument, i.e., ① conclusion of an individual contract with residents in the Gyeong Broadcasting and the above contract of the council of occupants' representatives, and the plaintiff also acknowledged the fact that an individual contract was concluded with residents in the Nyeong Housing Housing Complex. ② Since it is not difficult for residents to have entrusted the authority to conclude an organization contract with the above residents' representatives' representatives, it is difficult to view that the above supply contract is effective to the residents in the above contract. ③ In determining the objective agreement of expression of intent for the formation of contract, if there is a disposal document contract, the existence and contents of the expression of intent should be acknowledged as stated in the contract unless there are special circumstances (see Supreme Court Decision 2008Da96291, 96307, Apr. 23, 2009, etc.). Thus, it is not reasonable to deem the contents of the individual contract concluded with the aforementioned entrusted residents' representatives, as alleged by the plaintiff.

B) Whether the instant disposition violates the principle of proportionality

In light of the facts stated in Gap evidence No. 1, most of the corrective measures of this case were suspended by the defendant by reducing TV license fees until July 2014. From June 2015 to July 2016, it is recognized that the number of contracts which suspend the corrective measures of this case by reducing TV license fees, etc. is 5,000 won, and that the amount of increase of TV license fees is 17,700 won as the total increase of 159,190,200 won due to the corrective measures of this case, and only 0.07% of the total increase of TV license fees of 159,190,200 won (the above fact seems not to be disputed). However, considering the above facts and circumstances stated in the above facts, i.e., the fact that the defendant acquired more than 70% of the violation of the corrective measures of this case from June 2016 to July 20, 2016 as the total increase of 70% amount of TV license fees for non-performance.

C) Sub-determination

Since the instant disposition is deemed unlawful since it deviates from or abused discretionary authority, the instant disposition is lawful.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.

[Attachment]

Judges Yang Sung-ju (Presiding Judge) Kim Un-soon

1) The Plaintiff owned 97.04% of shares of the Gyeongbuk Broadcasting at the time when corrective measures are imposed in relation to the combination of enterprises in the original case.

2) From September 2012 to February 2013, 2013, the date of receipt of the first written decision on the trial, 363 individual contractors entered into a contract for the use of the Arabic broadcast service. Gyeongbuk Broadcasting, in accordance with the terms and conditions of the contract, increased the monthly receiving fee from 18 months after the date of the contract to 4,400 won, and imposed monthly receiving fee from 3,300 to 4,400 won for five months later than the agreed time.

3) From October 2012 to February 2013, 2013, the date of receipt of the first written decision on the trial, the Gyeongbuk Broadcasting concluded a contract with five individual contractors to use the Royal Broadcasting Services. However, notwithstanding the absence of an agreement on the increase of the receiving fees under the contract, the monthly receiving fees was raised from KRW 3,300 to KRW 4,400 and imposed by July 2016.

4) Pursuant to Article 17-3(1)1 of the Fair Trade Act, the standard amount is the total amount of the book value of the shares acquired or owned and the obligations acquired.

(5) The period of nonperformance when a corrective measure, such as price limitation, was taken pursuant to Section 4.2 (b) of the Fair Trade Commission Notice No. 2015-15 on October 23, 2015 (referring to the period amended as the Fair Trade Commission Notice No. 2015-15 on October 23, 2015, and enforced as of October 23, 2015; hereinafter referred to as “standards for imposing non-performance charges”). The period from the date when the non-performance of the corrective measure occurred until the date when the non-performance of the corrective measure was terminated. The date when the non-performance of the corrective measure was occurred, the Defendant calculated the non-performance period as of October 24, 2016 on April 1, 2013, which first raised the monthly receiving fee for the broadcasting organization contractor or individual contractor, exceeding the consumer price inflation rate.

6) The imposition rate of enforcement fines on the daily basis is 2/10,000, since the combination of enterprises in the original case is less than KRW 78,728,03,000,000, pursuant to subparagraph 5.1.

7) The Defendant reduced 30% of the enforcement fines calculated based on the fact that 7 corrective measures, such as the prohibition of increase of the receiving fees, imposed on the combination of the original cases, were not fulfilled only the obligation to report within 14 days.

8) The Defendant reduced 90% by taking into account the following: (a) the number of households increased by the receiving fees for the Gyeongbuk Broadcasting was less than 5.7% of the total number of households under contracts for the Rodays Broadcasting as of the end of 2013; (b) the amount of profit acquired by raising the receiving fees is more than 160 million won and is merely 0.87% of the total sales of the Rodays Broadcasting during the period of the violation of the Gyeongbuk Broadcasting; and (c) the amount of increase in the receiving fees for the Gyeongbuk Broadcasting was fully refunded.

9) On July 31, 2016, the Gyeongbuk Broadcasting suspended the increase of receiving fees for each individual contractor.

10) Since a business combination becomes an over-point business entity after the combination of enterprises, if there is a risk that other business entities may increase the price of the business entity as a result of the increase of the price in violation of the duty of omission, it may be seen that there is a risk of