Kapete Co., Ltd. (Law Firm LLC, Attorneys Park Gi-sik et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Loex, Attorneys Seo-dae et al., Counsel for the defendant-appellant)

September 17, 2015

1. The Defendant’s corrective order and penalty surcharge payment order in attached Form 1, which were issued by the Decision No. 2014-210 on September 29, 2014, against the Plaintiff, shall be revoked in entirety.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff's status

The Plaintiff is a franchisor under Article 2 subparagraph 2 of the Fair Transactions in Franchise Business Act (amended by Act No. 11323, Feb. 17, 2012; hereinafter “Fran Business Act”) since a franchisee is a franchisee who receives franchise fees in return for the provision of support, education, and control on management, business activities, etc. using the Plaintiff’s business mark, and is a franchisor under Article 2 subparagraph 2 of the former Franchise Business Act (amended by Act No. 11323, Feb. 17, 2012).

B. The plaintiff's act

1) Restrictions on trading partners

The Plaintiff entered into a franchise agreement with 735 prospective franchisees from November 17, 2008 to April 3, 2012, when entering into a franchise agreement with 735 prospective franchisees, which began to engage in a transaction with the Plaintiff or a specific business operator designated by the Plaintiff (hereinafter “instant No. 1”).

2) An act of bearing expenses

According to the Plaintiff’s franchise disclosure statement and franchise agreement in 2010, the Plaintiff and the franchisee shared expenses incurred in advertising and promotion according to the criteria prescribed by the Plaintiff. However, on August 26, 2010, the Plaintiff entered into a contract with the KT Co., Ltd. (hereinafter “KT”) for the cooperative service contract (hereinafter “instant cooperative agreement”), and the Plaintiff had the franchisees bear all the expenses of the cooperative agreement to be borne by the instant cooperative agreement from November 1, 201 to July 201 (hereinafter “instant cooperative agreement”).

C. The defendant's disposition

1) The Defendant: (a) deemed that the Plaintiff’s instant act constituted “an act of unfairly restricting or restricting the member shop’s business activities” as prescribed in Article 12(1)2 of the Franchise Business Act; (b) Article 13(1) [Attachment 2] [Attachment 2] of the former Enforcement Decree of the Fair Transactions in Franchise Business Act (amended by Presidential Decree No. 23169, Sept. 29, 201; hereinafter “Enforcement Decree of the Franchise Business Act”); and (c) deemed that the instant act constituted “an act of unfairly impairing franchisees by taking advantage of the trading position” under Article 12(1)3 of the Franchise Business Act; and (d) [Attachment 2] Article 13(1) [Attachment 2] [Attachment 3] of the Enforcement Decree of the Fair Transactions in Franchise Business Act and issued a corrective order and penalty surcharge payment order against the Plaintiff on September 29, 2014 (hereinafter “instant disposition”).

2) The instant order to pay the penalty surcharge was issued by applying Articles 35 and 37 of the Franchise Business Act, Article 5-3 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 11406, Mar. 21, 2012); Article 61(3) of the Enforcement Decree of the same Act; and public notice of detailed standards, etc. for the imposition of the penalty surcharge (amended by Defendant Notice No. 2012-25, Aug. 20, 2012), and the calculation process of the penalty surcharge is as follows.

A) Relevant sales

From November 17, 2008, the period of violation was from November 17, 2008, to April 3, 2012, 2012, the day immediately preceding the date when a prospective franchisee amended an estimate/agreement to allow the Plaintiff to choose a trading partner when entering into a franchise agreement with respect to interior terms, equipment, machinery, equipment, etc., which the Plaintiff was incorporated as a corporation, and the relevant product is the interior terms, equipment, goods, etc. that the Plaintiff constructed and supplied to the franchisee during the period of violation. Accordingly, the relevant sales amount is KRW 181,346,813,00, sales amount for the Plaintiff’s related goods during the period of violation.

(b)standards rate and criteria for imposition;

The Plaintiff’s instant No. 1 act is likely to inflict damages on a large number of parties and constitutes a case of unjust enrichment, and considering the fact that the Plaintiff’s primary franchisor in the coffee specialty sector has a significant impact on the market, the Plaintiff’s imposition standard rate of 1.6% shall apply since it constitutes a serious violation. Therefore, the calculation standard calculated by multiplying the relevant sales by the imposition standard rate is 2,901,549,000 won.

c) there is no action with respect to the primary adjustment by an action element.

D) The second coordination by an element of an actor, etc.

On April 4, 2012, prior to the investigation by the Defendant, the Plaintiff is recognized to have made efforts for voluntary correction, such as amending estimates/agreements, so that prospective franchisees may choose regarding interior terms, facilities, equipment, and goods, and thus, 20/100 of the calculation criteria for the first adjustment shall be mitigated.

E) Determination of imposition penalty surcharges

Pursuant to Article 35 of the Franchise Business Act and Article 34(1) of the Enforcement Decree of the same Act, a penalty surcharge may be imposed on a franchisor within the extent not exceeding the amount obtained by multiplying the average sales for the three preceding business years by 2/100. The Plaintiff’s average sales for the three preceding business years on April 3, 2012, which is the last day of the violation, are KRW 97,124,650,00. Thus, the amount calculated by multiplying the average sales by 2/100 is KRW 1,942,493,00.

Since the second adjustment criteria exceed the imposition limit of penalty surcharge under the Franchise Business Act, the upper limit shall be 1,942,493,000 won, which is the amount of less than KRW 1,942,000,000, which is the penalty surcharge.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Determination as to the first act of this case

1) The plaintiff's assertion

A) Deficiency of coercion of transaction

Before securing a store, the Plaintiff’s franchisees voluntarily selected that the Plaintiff or the company designated by the Plaintiff receive interior services from the Plaintiff or the Plaintiff, and entered into a franchise agreement with the Plaintiff. Even if there was room for compelling prospective franchisees to do so during the process of concluding the franchise agreement, at least, the Plaintiff granted options to perform the “additional Construction” portion of the interior works through other companies. As such, there was no need for the Plaintiff to compel the other party to perform this portion.

In addition, the Franchise Business Act strictly separates “franchises” and “ prospective franchisees,” and restricts the other party to the regulation on the act of restricting the act of restricting the other party to the transaction by “franchises” who have already entered into a franchise agreement with the franchiser. In light of the above, the instant disposition that deemed that the instant disposition was conducted without any grounds for disposition, and thus, is contrary to the principle of statutory reservation.

B) The absence of illegality

The plaintiff's "An empty Lone Star" is protected by the Trademark Act as so-called so-called so-called Radar, and in addition, the facilities, equipment, goods, etc. supplied by the plaintiff are introduced as an essential element in securing the uniform image of franchise business at the level of the plaintiff's differentiated strategy and maintaining the identity of the plaintiff's goods and services. There is a limit in realizing the interior of "An empty Lone Star" through other artificial complex companies than the plaintiff. It is possible for the plaintiff to build more economically and economically than where the plaintiff's franchisees independently perform artificial complex construction work. Although most franchisees were granted options to allow the plaintiff to construct artificial park, etc. through other artificial complex companies after April 4, 2012, considering that most franchisees entrusted the construction of artificial park, etc. to the plaintiff or the company designated by the plaintiff, the 1 of this case's act of purchasing the plaintiff's equipment and appliances is recognized to be inappropriate at least after the purchase of the plaintiff's equipment and appliances.

Even if the forced transaction of the instant No. 1 act and the illegality are recognized, it does not constitute the act of restricting trading partners since it satisfies the exceptional permissible requirements under the proviso of Article 13(1) [Attachment 2] 2(b) of the Enforcement Decree of the Franchise Business Act.

C) Illegal in calculating the relevant sales amount

Even if the first act of this case violated the Franchise Business Act, the penalty surcharge order of this case is illegal as a deviation from and abuse of discretionary power for the following reasons.

(1) In addition to the interior construction of a franchise store, the term “additional Corporation” portion was selected by prospective franchisees, who are the other party to the transaction, and the act of restricting the transaction partner’s act of restricting “essential facilities, equipment, and goods” was justified to protect the trademark rights of the franchisor and to maintain the homogeneity of goods and services. Of the sales computed by the Defendant, the term “educational expenses” that are irrelevant to the interior terms, equipment, equipment, and goods are included in the sales amount, and thus, the relevant portion should be excluded

(2) The Plaintiff’s amendment of a part of the franchise agreement to the extent that it is likely to have been accepted as the act of undermining the other party’s goods, and went into effect on August 12, 201, and the termination date of the offense ought to be seen as August 11, 201, the preceding day.

(3) In light of the degree of violation of the first act and the fact that it cannot be deemed that considerable damage was inflicted on the other party to the transaction, such act cannot be deemed as “a serious violation.”

2) Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

(iii) the facts of recognition

A) The Plaintiff’s process of concluding new member shops

The plaintiff's new franchise store is normally established through the following processes:

① First of all, the “business team” shall consult a prospective franchisee about the establishment of a franchise store for a prospective franchisee; ② The “store development team” shall examine the propriety of the prospective tenant site; ② shall propose 2 through 3 stores centering on the leased water in the planned site; ③ shall present the business district review opinion (conformity and inappropriate) to a prospective franchisee after the business district review team; ④ a prospective franchisee shall secure a store that comes into a “comparably” before entering into a contract by leasing, etc. the store; ⑤ a prospective franchisee shall prepare a design drawing after measuring the relevant store in the “construction headquarters”; ⑤ a prospective franchisee shall calculate the cost of opening the relevant store in accordance with the design drawing; and (6) if the relevant documents are calculated in accordance with the construction drawings transferred from the “Construction Headquarters”, the “brping team” shall calculate and aggregate the amount of facilities, equipment, and supplies to be equipped in accordance with the construction design; and (7) if a prospective franchisee indicates a prospective franchisee and a prospective franchisee, the Plaintiff shall enter into a franchise agreement with the prospective franchisee at the same time as the beginning.

B.Construction and purchase of facilities, equipment, and supplies for the establishment of a franchise store

There are wooden construction works, painting construction works, electrical construction works, lighting works, interior glass projection works, installation works, painting works, etc. (hereinafter referred to as "basic construction works") and interior and exterior railing works, etc. (hereinafter referred to as "additional construction works") of a franchise store store. In addition, in the case of equipment, equipment, and supplies, there are furnitures, such as chairs, waves, and tables, coffee franchises, strawers, watcher, ice display, and other cooking equipment, such as string vibration level, ice display, water purifiers, water purifiers, etc.

C) The statement of expenses to be borne prior to the commencement of the business among the Plaintiff’s information disclosure statement

In the Plaintiff’s July 14, 2009, October 12, 2010, August 12, 2011, and January 12, 2012, the franchise disclosure statement IV states the following expenses to be borne by the franchisee prior to the commencement of business:

An additional burden of KRW 2,750,00 per 3 square meters per 3.3 square meters per 110,000 square meters per 3.3 square meters per 3 square meters per 3.3 square meters per 2,750 square meters per 132 square meters per 2,750 square meters per 112,20 square meters per 2.20 square meters per 14,30,300-18,700 square meters per 4,620-25, and per 60-660, and other expenses incurred for supplying main goods to be paid for the Gu (including 132 square meters, 40-18,700, and value-added tax) under the terms and conditions for the repayment of gold to be paid for the Gu (including 132 square meters and value-added tax) and per 4,620-25, and other expenses incurred for supplying main goods to be paid for the Gu (including 50%).

(d)the details of the franchise agreement;

A franchise agreement signed by the Plaintiff with multiple franchisees on Nov. 17, 2010, Aug. 12, 2011, and Jan. 12, 2012 includes the following (a minor change in the phrase of a franchise agreement by time, but its overall meaning or intent is the same).

(1) A franchisee shall prepare and install equipment (the interior equipment, interior and exterior decorations, fixtures, etc.) of the franchisee in accordance with the provisions of the franchiser: Provided, That the franchiser may directly provide the Corporation with necessary guidance or entrust the Corporation to a third party after consulting with the franchisee. Article 7 (Preparation) (1) A franchisee shall complete the installation of the franchise store at the expense of the franchisee in accordance with the franchiser's inspection and examination seven days before the opening of the franchise store. (2) If a franchisee entrusts construction of equipment of the franchisee to the franchiser in accordance with the standard model of the franchise determined by the franchiser to maintain the unity and originality of the whole franchise business (the installation of the franchise store). (3) If a franchisee entrusts construction of equipment of the franchiser in violation of paragraph (1) of this Article, the franchisee shall bear expenses incurred therein within the period of one year after signing an agreement with the franchiser or franchisee, and the franchiser may entrust the franchiser with construction of equipment of the franchisee in good faith.

E) Contents of estimates/Agreements

According to the estimate/agreement provided by the Plaintiff on or before April 4, 2012, the Plaintiff made a transaction of interior works only at the total amount without specifically distinguishing the items of interior works from the total amount. There was no exception by type of work in interior works. When concluding a franchise agreement on the additional construction works, the Plaintiff solicited prospective franchisees to request the Plaintiff or △△△ Design, and the prospective franchisees, upon the Plaintiff’s recommendation, requested the Plaintiff or △△ Design at the time of concluding the franchise agreement.

In the case of facilities, equipment, and supplies, the unit price for each item is not specified, as in the case of interior works, and only the total sum is indicated.

On the other hand, the Plaintiff revised the estimate/agreement on April 4, 2012. Under the amended estimate/agreement, the Plaintiff classified the category of interior works and the items of facilities, equipment, and goods, and made it possible for franchisees to choose a unit price by specifying the unit price. In particular, according to the internal review result that, in the case of facilities, equipment, and goods, it may be deemed that it may be forced to purchase them from the Plaintiff en bloc, it is divided into “essential items” and “alternative items,” and the prices by item are also specified. According to the revised estimate/agreement, both the basic construction works and additional construction works of interior works are classified as selective items, and approximately 65% of facilities, equipment, and goods are classified as selective items based on the amount.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 3, 4, 6, 7, 10, Eul evidence Nos. 1-2, 3, 4, 5, 6, 5, 7, 10 (including branch numbers), witness non-party 2, and non-party 3's testimony and the purport of the whole pleadings

4) Determination

A) Whether the transaction was forced or not

The purpose of Article 1 of the Franchise Business Act is to contribute to the promotion of consumers and the sound development of the national economy by ensuring the complementary and balanced development of franchisers and franchisees on an equal footing. Article 2 Subparag. 2 and 3 of the same Act defines “franchises” as “business operators who are granted a franchise license from a franchiser in connection with a franchise business,” and “intending franchisees” as “persons who consult or consult with a franchiser or a regional headquarters in order to conclude a franchise agreement,” and Article 12 Subparag. 5 of the same Act defines “franchises” as “the contractual rights” that enable franchisees to operate a franchise store in relation to the franchise business of a franchisor. Meanwhile, Article 12(1)2 of the Franchise Business Act prohibits by stipulating “the prices of goods or services handled by a franchise business entity, trade partners, trade areas, or franchisees, or business activities of a franchisee” as “an unfair trade practice.”

Examining the language, contents, system, etc. of the above provisions, Article 12(1)2 of the Franchise Business Act prohibits franchisees from deeming their business activities to be a conditional transaction, taking advantage of the fact that the franchisor has economic advantages in relation to the franchise agreement, and thus, the act of unfairly restricting or restricting business activities of the franchisees is prohibited. Here, franchisees are premised on the fact that the franchisor is authorized to operate the franchise and the franchisor enters into a franchise agreement with the franchisor, and thus, prospective franchisees who did not enter into the franchise agreement do not constitute a prospective franchisee. Since a prospective franchisee may freely decide whether to enter into a franchise agreement after examining the conditions of various franchise agreements including the establishment of the franchise store, he/she cannot be said to have the same legal status as a franchisee who has been bound by the franchise agreement after entering into the franchise agreement with the franchisor and the franchisee are bound to enter into the franchise agreement. Therefore, restricting the type of services and facilities used to establish the first franchise store to establish the franchise store in the course of entering into the franchise agreement, and restricting the type of services and facilities used to perform such business activities with the prospective franchisees cannot be considered as an unfair trade agreement.

However, according to the following circumstances revealed in light of the fact of recognition as seen earlier in the legislative intent of the Franchise Business Act, the instant No. 1 act does not constitute an act restricting the sale of goods or services according to the unfairly designated trading partner.

(1) The Plaintiff, a franchisor, through a franchise agreement with a franchisee, receives franchise fees in return for the transfer of all the franchise license that enables the franchisee to sell goods according to certain quality standards or business methods using the Plaintiff’s business mark. The franchise license provided to the franchisee includes the sale of goods that the Plaintiff can sell as a coffee store called carpete, by quality standards or business methods determined by the Plaintiff. The franchise license provided by the Plaintiff includes facilities, equipment, and supplies provided to guarantee a specific interior pattern or a certain level of quality above the required level of quality required by the Plaintiff. It may also be included in the franchise license mentioned above.

② The prospective franchisees who intend to operate the Plaintiff’s franchise store may estimate in advance the fact that the Plaintiff sells interior works, equipment, apparatus, and supplies on the Plaintiff’s website or through the information disclosure statement provided by the Plaintiff at the stage of concluding the franchise agreement, and the expenses incurred in performing such interior works and purchasing equipment, apparatus, and supplies. Based on such forecast, prospective franchisees may choose the most suitable coffee specialty compared with other coffee specialty franchisors, and leave from the process of concluding the agreement with the Plaintiff where they fail to reach an agreement on matters, such as expenses.

③ Even if a franchise agreement with the Plaintiff was entered into or simultaneously with the entrustment of interior works, etc., a prospective franchisee shall calculate expenses incurred in performing interior works, equipment, equipment, and supplies, etc., which can be known through an information disclosure statement, etc. provided by the Plaintiff, in advance and conduct a franchise agreement. In reality, it is consistent with the transactional reality to deem that, if the Plaintiff entrusts the construction of interior works to the Plaintiff, and if the construction is entrusted to the Plaintiff, the cost of construction works will be the sum of expenses incurred. Therefore, even if the construction contract is entered into after the execution of interior works, a franchise agreement is concluded on the premise that the Plaintiff will be entrusted with interior works, etc., and thus, the instant act of subparagraph 1 of this case will take place at the same time as before the execution of the franchise agreement or the execution of the franchise agreement.

④ The Defendant asserts that, as a franchisee does not want to entrust interior works or purchase facilities, equipment, and supplies from the Plaintiff, if the franchise agreement is not concluded, it is difficult to waive the Plaintiff’s demand. However, since a prospective franchisee did not conclude the franchise agreement with the Plaintiff, it is difficult to refuse the Plaintiff’s demand. However, since a prospective franchisee did not have been bound by the franchise agreement, it is possible to freely contact the Plaintiff and to provide consultation on establishment with another franchisor, as well as to provide consultation on establishment, and it is necessary to secure title, such as ownership or right of lease, to secure a store to establish a coffee specialty. The cost of store creation generated in the process of such process is naturally incidental expenses even if the franchise agreement is concluded with other franchisor than the Plaintiff, and thus, it is difficult to deem that there is a de facto coercion.

⑤ In fact, some prospective franchisees entered into an additional construction contract with the Plaintiff while entering into the franchise agreement with another constructor. However, the Plaintiff did not put any disadvantage to the franchisees by entering into the franchise agreement with the Plaintiff. Moreover, allowing the Plaintiff and the Plaintiff-designated companies to conduct interior construction and purchase equipment, appliances, and supplies in the first place of a franchise store is only the time when the Plaintiff first opens a franchise store, and it does not restrict the opposite contractual party regarding the construction of interior works, such as the improvement of the store environment, and the purchase of equipment, appliances, and supplies on the ground of continuous franchise agreement even after the establishment of the franchise store. Moreover, the Plaintiff, after April 4, 2012, given the prospective franchisees the option to the opposite contractual party, and most prospective franchisees were deemed to have entered into the franchise agreement with the Plaintiff while entering into the franchise agreement with the Plaintiff.

B) Whether to recognize illegality

(1) Whether the act of a franchisor to purchase and install facilities such as indoor and outdoor decoration of a store in a franchise store to the extent necessary to achieve the purpose of a franchise business shall be determined by considering the purpose of the franchise business and the contents of the franchise agreement, the payment method of the franchise fee, the relationship between the goods or services subject to the franchise business and facilities, the need for technical management, standard management, distribution management, and hygiene control for securing the uniform image of the franchise business, and the need for the maintenance of the same quality of the goods, etc., if the franchisor fails to arbitrarily purchase or install such facilities at his/her discretion, it shall be determined by determining whether it impedes securing the uniform image of the franchise business and guaranteeing the same quality of the goods (see Supreme Court Decision 2002Du332, Mar. 10, 2006).

(2) As seen earlier, the Plaintiff notified franchisees of the fact through the franchise disclosure statement and entered into a contract by the franchisee. In addition, the circumstances acknowledged by Gap evidence Nos. 27, 29, and 30, witness Nonparty 2 and Nonparty 4’s testimony and the entire purport of pleadings, i.e., the Indian Corporation appears to be necessary to maintain the European wind “Lone Star” as the uniform image of the store. ② The Plaintiff and △△△△ Design developed the Japanese word “Lone Star” word around 209, when the Plaintiff started franchise business, it is difficult to view the Plaintiff’s assertion that the Plaintiff’s purchase of the equipment and appliances for the purpose of the uniform construction of the franchise business is unreasonable or that it is difficult to view that the Plaintiff’s purchase of equipment and appliances for construction of the Plaintiff’s franchise business, which is an essential part of the Plaintiff’s franchise business to ensure that the Plaintiff’s purchase of equipment and appliances for construction of the Plaintiff’s franchise business would be more effective than the Plaintiff’s purchase of equipment and appliances for construction of the Plaintiff’s franchise.

C) Sub-determination

Therefore, among the corrective orders of this case, the part of the corrective order of this case ordering correction of the act of this case should be revoked in an unlawful manner without any need to examine the remaining arguments of the plaintiff, and the penalty surcharge payment order of this case due to the act of this case No. 1 should be revoked as it is unlawful without further examining the remaining arguments

B. Determination as to the second act of this case

1) The plaintiff's assertion

① In light of the characteristics of the franchise agreement, the allocation of advertising and promotional expenses may be set by various means; ② The Plaintiff’s act of this case cannot be deemed to have been disadvantageous to the Plaintiff, considering the following: (a) the Plaintiff revised the franchise disclosure statement on October 25, 2010, which was the business to start the events for partnership (hereinafter “instant events for partnership”); and (b) made the Plaintiff bear all the accumulated points expenses that the Plaintiff had borne by the franchisee; and (c) the act of this case’s act of this case’s subparagraph 2 can be deemed to be a business practice even compared to other coffee stores; (d) the purpose of enhancing the competitiveness of both the Plaintiff and the Plaintiff and the franchisees at the same time, and the Plaintiff’s implementation of the instant alliance agreement with the individual consent of the franchisees, in addition to the fact that the Plaintiff implemented the instant alliance agreement with the Plaintiff, the act of this case’s act of this case cannot be deemed to constitute “disadvantageous treatment”.

2) Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

(iii) the facts of recognition

A) Prior to the conclusion of the instant partnership agreement

(1) From May 2010 to June 201 of the same year, the Plaintiff planned the “TAF alliance alliance service” and the “IFC alliance service.” The content provides 10% discount benefits to the Plaintiff’s member’s franchise store to purchase the goods at the Plaintiff’s franchise store, and the Plaintiff’s and the Plaintiff’s side share one half of the costs.

(2) On August 6, 2010, the Plaintiff explained the Plaintiff’s burden of partnership and the effect of sales increase, and investigated whether the Plaintiff participated in the above partnership services. While 107 of the total 173 franchisees decided to participate, the rest 66 franchisees expressed their intent to refuse to participate on the ground of the burden of expenses.

B) Conclusion of the instant partnership agreement

On August 29, 2010, the Plaintiff entered into the instant partnership agreement with KT. The main contents are as follows.

The term of validity of all the items sold or provided by the Plaintiff of the items subject to the attached services included in the main text shall be from October 29, 201 to October 31, 201: Provided, That if there is a Plaintiff’s franchise store that does not consent to the participation in the attached association from October 8, 2010, the contract shall lose its validity without any separate expression of intent: Provided, That stores that can not proceed with prior consultation shall be excluded. The amount paid by the Plaintiff for the attached services at the rate of 10% discount settlement rate of 50% per month for the attached services shall be paid to the Plaintiff on a monthly basis based on the computerized data of the KTT’s 50% settlement period, and if the attached data of the Plaintiff are different, the Plaintiff shall actively endeavor to determine the cause of the difference between KT and the Plaintiff’s attached data in consultation with each other, and if it is recognized by the other party to submit evidence on the difference, the Plaintiff shall not be able to make an ex officio adjustment within the fixed period of 10th day before the settlement date.

C) Correction of the franchise disclosure statement dated 25 October 2010

(1) The Plaintiff revised the franchise disclosure statement as of October 25, 2010, including changing the item of “a 2% of the sales amount” that was wholly borne by the franchisee to the Plaintiff, the franchisor, and establishing a new content that the franchisee bears the expenses for the instant alliance, before implementing the instant alliance agreement.

(2) Of the details of the Plaintiff’s information disclosure statement, the details of changes in the terms of “a deposit point”, “a gift certificate”, and “the share of the expenses incurred in advertising and promotion activities” are as follows.

The ratio of the shares of the head office in the main sentence / the ratio of the shares of the franchise store / the share of the franchise store / the share of the franchise store / the share of the franchise store / the share on July 14, 2009, as of October 25, 2010 / 12, 100% / 100% / 100% / 100% / 100% / 00% / 00% / 00 / gift certificates 50% / 50% / 50% / 50% 50% / 50% 50% / 50% 50% / 10% 50% of the discounted amount (10% discount) of the gift certificates :

D) The process for obtaining consent from a franchisee

In order to implement the instant partnership agreement, the Plaintiff intended to collect a contract for the alliance service from all stores excluding the Araco shop (a group meal service business, operated within the meal service plant) until September 28, 2010. However, the Plaintiff failed to obtain the consent of all franchisees until October 8, 2010, when obtaining the consent of KT and the franchisees determined. The Plaintiff obtained the consent of all franchisees, excluding one franchisee (Malsan store) only when he/she was at the end of October 2010 through continuous snow gathering work. On October 26, 2010, the Plaintiff sent a notice of guidance to implement the partnership agreement to the franchisee, and subsequently suspended the instant event on November 1, 2010.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 2, 6-1, 2, 3, 4, 15, Eul evidence Nos. 3, 4, and 5, and the purport of the whole pleadings

4) Determination

A) In order to constitute a disadvantage in an act of offering disadvantage, the mere fact that the content of the act is somewhat unfavorable to the other party is insufficient. It is recognized that one party establishes or alters the terms and conditions of transaction by unfairly using his/her transaction position to the extent that it can be deemed the same as compulsory purchase, coercion of offering profits, enforcement of sales target, etc. Furthermore, whether an act of offering disadvantage to the other party by unfairly using his/her transaction position is an act of offering disadvantage to the other party should be determined depending on whether it goes beyond normal transaction practices in light of the following: specific aspects such as intent, purpose, effect, influence, etc. of the act in question, characteristics of the goods, transaction situation, degree of the superior position of the pertinent enterpriser in the market, and contents and degree of disadvantage that the other party would suffer (see Supreme Court Decisions 2003Du7859, Sep. 8, 2006; 202Du3322, Mar. 10, 2006, etc.).

B) In light of the legal principles as seen earlier, considering that ① the franchisor and its franchisees were engaged in various advertising and promotional activities to achieve their common interest, i.e., maintenance and development of the franchise business, and that it would be reasonable to comprehensively determine the burden of the Plaintiff’s overall burden between the franchisor and its franchisees rather than individually looking at the specific advertising and promotional activities (the Defendant still provides that the franchise disclosure statement of August 12, 201 would bear the expenses of the instant case, but the Plaintiff’s violation of the Franchise Business Act through the instant act was terminated on July 12, 2011 by modifying the franchise disclosure statement, deeming that there was little difference between the Plaintiff and the franchisee’s share of the expenses incurred in the instant act of attracting revenues and losses to the franchisees by using the 20% of the total sales and promotional activities of the franchisees, and that it would be difficult for the Plaintiff to undertake the 10% of the total sales and promotional activities of the franchisees, instead of the Plaintiff’s share of expenses incurred in the instant sales and promotional activities.

C) Sub-determination

Therefore, since the plaintiff's assertion is reasonable, the part of the corrective order of this case which orders correction of the second act of this case should be revoked as unlawful.

3. Conclusion

Therefore, since the plaintiff's claim is reasonable, it is decided to accept it and it is so decided as per Disposition.

[Attachment Omission]

Judges Yellow-Jil (Presiding Judge)

1) The term “bryping” refers to bryping that the Plaintiff proceeds mainly from franchisees and the establishment cost in advance for the performance of interior works, installation of office fixtures and fixtures, etc.

2) The Defendant stated in the written resolution that “The Plaintiff’s act of bearing expenses under the partnership agreement was terminated on July 201. According to the franchise disclosure statement as of August 12, 201, the part related to the cost sharing of advertising and promotional activities and the share of expenses for the gift certificates that the Plaintiff and the franchisee shared by 100% and the Plaintiff and the franchisee shared by 50%, shall be borne by all the Plaintiff, and the expenses for the partnership shall be borne by all the franchisees.” However, the franchise disclosure statement revised to bear all the costs for the gift certificates that the Plaintiff and the franchisee shared by 50%, not the revised franchise disclosure statement as of August 12, 201, but the revised franchise disclosure statement as of January 12, 2012, is an amended franchise disclosure statement as of January 12, 2012.