(영문) 서울고등법원 2014.11.21.선고 2012누24513 판결

4. The proviso of paragraph (1) and paragraph (3) of the attached Form 1 among the corrective orders are effective until the judgment of this case becomes final and conclusive.

shall be suspended.

Purport of claim

Order of correction listed in attached Form 1, as the Defendant’s Order of Correction No. 2012-123, July 13, 2012, to the Plaintiff and the Plaintiff

Order of payment of penalty surcharges listed in Appendix 1 attached hereto, No. 2012 - 001 of August 27, 2012 is revoked.

Reasons

1. Facts of recognition

A. The plaintiff's status

The Plaintiff, a business operator engaged in telecommunications business and telecommunications-related equipment sales business, etc., Germany

It is a business operator under Article 2 (1) of the Act on Regulation and Fair Trade (hereinafter referred to as the "Act").

(b) Market structure and actual conditions;

1) Current status of the mobile telephone terminal manufacturing market;

B Stocks, a domestic manufacturer, in the domestic mobile phone (hereinafter referred to as "terminal") market

G. Co., Ltd., C, and D (hereinafter collectively referred to as “three manufacturers”) and in all names of the Company.

corporation shall be omitted) manufacture 3, such as that the total share as of 2010 reaches approximately 85%, and that the total share reaches approximately 85%.

In 2009, smartphones for overseas research such as E have created a competitive system.

The competition is deepening in the aspects of entering the market.

Domestic Terminal Manufacturing Market Shares

A person shall be appointed.

2) Current status of mobile communications service market

In the domestic mobile communications service market, the mobile carrier H, I, and the Plaintiff (hereinafter referred to as the “in common,” a mobile carrier.

New three companies) form a three competitive system, and the market share of these three mobile communications companies.

Since 2007, almost all of them have been solidized.

Share of the mobile communications service market (based on the number of subscribers)

A person shall be appointed.

3) Regulation of mobile phone subsidies to mobile operators by the Korea Communications Commission

Mobile subsidy means the cost of purchasing a device under the condition that a mobile communications service contract is concluded;

assistance or assistance to the users in whole or in part. The Korea Communications Commission

regulation of the subsidy of a device is a regulation for the mobile carrier and the subsidy for the manufacture of a device

this regulation does not apply.

The Korea Communications Commission, in introducing regulations on terminal subsidies in June 200, shall set a terminal device

The prohibition of full-scale gold shall be reflected in the terms and conditions of use by the mobile carrier, and if it is violated, it shall be

The Telecommunications Business Act, among prohibited acts under the Telecommunications Business Act, sanctions were imposed on the violation of the terms and conditions of use. Act December 26, 2002

Telecommunications Business Act amended by Act No. 6822, which was enforced on March 27, 2003, and entered into force on March 27, 2003, a telecommunications business operator

Supporting or assisting users in all or part of the purchase cost of communications terminal devices;

shall be added to prohibited acts of a telecommunications business operator, and shall be between a telecommunications business operator and a user.

Where a person who executes a contract, etc. on his/her behalf performs an act of subsidizing purchase costs of a device;

Telecommunications to impose corrective measures and penalty surcharges on the relevant telecommunications business operator;

The fair competition system between businesses was strengthened. On the other hand, it was amended by Act No. 7916 on March 24, 2006.

According to the Telecommunications Business Act enforced on March 27, 2006, the payment of the purchase cost of a device is, in principle, gold under the Telecommunications Business Act

(2) The period shall be two years from the enforcement date of this Act, and shall be at least 18 months for users, etc.

to cover the purchase cost of a device exceptionally, and to subsidize the purchase cost of a device

the Minister of Information and Communication may report and use the criteria, limits, etc. of the assistance.

the end of March 2008, the regulation of terminal subsidies is completely abolished and closed.

The Korea Communications Commission, however, has become a member of the subscription costs for the recruitment of subscribers.

If the expected profit exceeds the expected profit, there is a possibility of reimbursement to other subscribers.

The aggregate of the average expected gains per subscriber and the terminal subsidies created from the average production incentive for each subscriber;

Subsidies exceeding 270,000 won, shall be deemed illegal, and shall be deemed to have been paid on September 24, 201 and September 2011.

19. Corrective orders, payment orders, etc. to three mobile communications companies on several occasions, including an order for correction and payment of penalty surcharges;

provided that it can be seen as a reasonable management activity belonging to a normal commercial practice under social norms.

The subsidy for the purpose of stock inspection for which 20 months have passed after the withdrawal was lawful.

4) Mobile device distribution structure

(A) a distribution model and business model;

the distribution model, and the mobile carrier, of the device directly supplied from the manufacturer of the device to the agency

of the device in circulation is called a business model. The current volume of the device in circulation in Korea is currently

Of them, 85% of them are distributed through mobile operators, and 15% of them are also distributed models.

Since it is possible for a mobile carrier to open a device only after the mobile operator registers the device information, all devices are available.

There are some aspects of distribution under the control of mobile carriers.

In this case, the end of this case is at issue as to whether only the business model is illegal.

the business model is limited to the business model.

B) non-contractual model and contract model

A business model distributed through a mobile carrier is again a non-contract model (public model) and a contract model (former model).

The contract model can be divided into a model). The contract model can be distinguished from other mobile carriers.

prior to the departure of a device for the purpose of securing a device, the purchase of such device for a certain quantity from the date of the installation;

There are many cases where the contract is a model that is made up and the exclusive device that is supplied only to a specific mobile operator.

The model shall be supplied to the mobile carrier by net (Net value, net value) in return for the mass purchase by the manufacturer.

Therefore, net model is also called a model.

C) Do, retail sale phase

A mobile carrier shall purchase a device from a manufacturer in bulk and sell it to the agency in wholesale.

agency shall act as the carrier. The agency shall enter into an entrustment contract with the carrier and between the carrier and the consumer.

The purchase and consumption of a device from a mobile operator at the same time while acting for the subscription to the mobile communications service;

sales to persons, and on consignment through sales stores, the device purchased from the mobile operator

(b) purchase of mobile communications services due to the structure in which the device is sold through such agency;

There is a form of combined sales where the transit terminal sales are made together.

Direct agency or entrusted agency of a mobile carrier shall directly sell a device or sub-sales store;

sales of a device. The sales store is a device from all three mobile carriers.

Due to the supply of the device, the type of the device at ordinary time is sold, and the device with the agency is

The mobile communications cost in the name of the agency in the process of retail sale of the device through the consignment sales contract;

agency for soliciting subscribers (hereinafter referred to as agency, sales store, hereinafter referred to as "agency")

(3).

5) Terminal price structure

(A) the supply price and ex-factory price

The manufacture of a device shall sell a device to the mobile carrier in charge of the wholesale of the device,

The supply price is ‘the price'. In addition, the mobile carrier sells a device to the agency.

The ex-factory price is called "the ex-factory price".

agency, on the basis of ex-factory price when it sells mobile communications services and devices to consumers;

As much as possible, food sales methods have been established to explain whether to discount and sell subsidies;

Naturally, the ex-factory price becomes known to consumers; 1)

(B) agreed subsidies and out-of-contract subsidies;

(1) Agreement subsidies.

A mobile carrier shall directly make a device to consumers in addition to incentives as a means of marketing for mobile communications services.

The discount and the discount of charges shall be provided to the consumer without going through the agency. The discount and the discount of the terminal shall be

the terms and conditions of the mobile carrier. The discount of a device is directly paid to the carrier, and is included in the terms and conditions of the contract.

To discount part of the purchase price of a device subject to the subscription to a device agreement, and to mobile communications;

corporation, without going through an agency, directly provides to the consumer with such services, and from the viewpoint of the mobile carrier, Mab

amounting to the printing cost. The discount of a terminal is the discount of terminal value at once, subject to the agreement.

Do and (in such cases, the amount of discount for the unused period shall be paid as penalty upon the termination of the contract).

Pursuant to the terms and conditions, part of the cost of terminal installment every month shall also be discounted (at the time of termination, existing

There is no separate penalty for the discounted amount. The scale of the discount of a terminal shall be by the agreed period, and the type of terminal equipment.

It shall be paid differently by the rate system, and the detailed form is different by the mobile operator.

It refers to a contract subsidy for a device.

(2) Subsidies out of contract.

The mobile devices manufacturer and the mobile carrier shall pay the agency various promotion incentives. The agency shall pay the agency various promotion incentives.

The name of the subsidy received from the sale of a device shall be the manufacture subsidy, the mobile carrier subsidy, the manufacture; and

The agency has various kinds of incentives, such as incentives for joint sales promotion of mobile carriers. The agency is one of its Ma taking into account the scale of the incentives.

(2) The agency's price at a discount shall be determined by setting up a substantial width and determining the retail principal. (2) In this case the agency's price at a discount.

the margin of delivery (the ex-factory price - retail price) refers to non-contract subsidies (other than the arrangements in this case).

Only the illegality of subsidy payments is a problem).

Change of only a mobile network operator while the consumer uses the device he/she has used as it is;

(2) In the case of a mobile communications service without purchasing a new device, other than the agreement;

No assistance shall be paid to the exclusive agent of the manufacturer. In addition, the exclusive agent of the manufacturer shall be admitted to the mobile communications service.

It is also possible to purchase only a device, but because there is no benefit from the subsidy of the device, it is actually public ( space).

there are almost no consumers who purchase the system.

1) In the case of a non-contractual model (influence of supply)

The mobile carrier has a high competition in attracting subscribers due to the abolition of the number portability system, and subsidy regulation.

It is necessary to pay a lot of subsidies to the manufacturer, who is more likely to give a lot of contributions to the manufacturer.

was required. The manufacture is required to create financial resources for the subsidy to be shared at the request of the mobile carrier.

(1) In addition, it is necessary to take into account the status of other manufacturer devices of the same class and the status of the device.

It was necessary to set the price in advance.

In this process, three manufacturers shall consult with the Plaintiff and use the so-called policy for subsidies.

The supply price of the non-contractual model, including the cost, was determined and held by the Net Company on the basis of the cost.

In addition, even if the third manufacturer separately considers the cost of supply, the plaintiff also unfilled the cost of supply.

Since all policy costs can be paid as subsidies, when there is no burden of supply due to increase in the supply.

The supply of 3 manufacturers actively participated in the so-called so-called a part-time.

If the third party pays to the agency the money created as policy funds, the agency shall be given a subsidy.

Magjin and the remainder shall be paid to consumers out of the contract.

2) In the case of a contract model (the ex-factory date)

As the competition of subsidies in the mobile communications service market is more intense, the position of the mobile operator is the position of the mobile operator.

in addition to the subsidy competition, it is important to secure strategic devices distinct from other mobile operators.

As a result, the method of supplying a device in the contract model appeared.

The three mobile carriers have determined the ex-factory price from the supply price plus the distribution cost; and

otherwise, in the case of a contract model, the ex-factory price including a so-called policy pool to be used as the subsidy.

The three manufacturers did not limit the contract model to the supply to the Plaintiff as a net, but did not limit the contract model to the supply to the Plaintiff.

(2) The determination of the ex-factory price by presenting a high level of ex-factory price (draft) on the ex-factory price to be determined by

The active and active participation was made.

The Plaintiff’s financial resources for non-contract B subsidies equivalent to the difference between the ex-factory price and the supply price of the contract model (policy pool)

used.

3) Ratio of incentives to the ex-factory price

The defendant shall require the third manufacturers to submit a written price, and the actual 66 non-contractual model

The difference between the supply price and the net (the amount clearly stated) from the amount of the average incentive paid shall be the difference between the supply price and the net

was considered as a incentive that would normally be paid, which accounts for an average ex-factory price.

at the rate of 12.3%. On the other hand, as to the contract model 44, the outcome calculated in the above manner.

such percentage is 10%, and the 66 non-contractual model, and the 44 contractual model as above combined; and

As a result, the proportion is 11.4% (the defendant's response on November 19, 2013 on his/her name).

A. The defendant does not actively dispute this.

Of the model model that the Plaintiff launched from February 2, 2008 to December 2, 2010, the total incentive for ex-factory price (the Plaintiff and the Plaintiff) shall be prepared for the total incentive (the Plaintiff and the Plaintiff).

The ratio of incentives paid by 3 mobile communications companies to 12.3% (the sum of the incentives paid by 3 mobile communications companies) shall be the maximum favorable to the plaintiff.

The model in excess of B is set forth in Appendix 55, and the end of Table 1 to Table 4:

(hereinafter referred to as "the instant device"). The average incentive per unit is 207,836 won, average of which release is made.

A 598, 228 34.74% = 207, 836 / 598, 228)

D. The defendant's disposition

1) A corrective order

The Defendant’s decision No. 2012 - 123 decided July 13, 2012 (hereinafter “Plaintiff”) manufactures the instant terminal in relation to the instant terminal

The financial resources for out-of-contract subsidies to be paid to consumers by withdrawing the supply price or ex-factory price in consultation with the company;

by creating a corporation and granting out-of-contract subsidies created in a unrefluened manner to consumers;

Doescing that a non-party under a discount to purchase a high-priced device at a low price; and

3) The term "by reason, Article 23 (1) 3 of the Act and Article 36 of the Enforcement Decree of the Act"

Article 1(1) [Attachment 1-2] subparagraph 4(b) of attached Table 1 shall apply to corrective orders (order of prohibition, disclosure) in attached Form 1.

Order, reporting order) was issued.

2) An order to pay a penalty surcharge

① The Defendant issued an order to pay a penalty surcharge by Resolution No. 2012-123, July 13, 2012, as follows:

○ Relevant sales

88, 716, 304,00 won (the mobile communications note paid to the Plaintiff by the consumer who purchased the instant device)

s Fees)

○ Standard Rate

0. 6% (the Plaintiff’s act is as if the Plaintiff received subsidies from high-priced terminals and subsequently purchased them at low cost.

Consumer reasonable choice by misunderstanding consumers, and competition by price and quality

The introduction of the number portability system in 2004, assistance in 2006

in 208 the competition of subsidies between mobile operators in the process of the abolition of the subsidy regulation in 2008

The amount of incentives for manufacture has increased at the request of the mobile carrier, and the manufacturer has increased the amount of incentives;

The fact that there is a high price in the process of reflecting the amount of money in the price, and the time of selling the current terminal

The head of the Gu shall open a device with a device identification number registered in a mobile operator only.

Considering that it is a market led by a mobile carrier due to the system, a serious violation

Ro springing)

○ Basic Calculation Criteria

5, 332, 297, 000 won = 888, 716, 304, 000 won ¡¿ 0.6%)

○ Imposition Penalties

2. 2. 66, 000,000 won (a reasonable amount from the Korea Communications Commission in connection with the payment of subsidies)

on the basis of the fact that the penalty surcharge has been imposed, the highest heat supplier, and the device is late compared to other mobile operators.

Considering that there are aspects of the current price-fixing structure, such as many cases of receipt, etc.

50 % Reductions

② The Defendant is aware of the error of calculation of related sales and decided August 27, 2012 - 001

The text and reasons of the above written resolution were as follows.

○ Relevant sales

1, 039, 164, 597, 000 won

○ Basic Calculation Criteria

6, 234, 987, 000 won = 1,039, 164, 597, 000 won x 6%)

○ Imposition Penalties

3, 117, 000, 000 won

[Grounds for Recognition] Unsatisfy, Gap evidence 1, 4 through 7, Eul evidence 1 to 38 (with a number of copies)

each entry, the witness J, and K's testimony, the purport of the whole pleadings.

2. Relevant provisions

Attached Table 5.

3. Determination

A. Whether an order of prohibition and a payment order of penalty surcharge are lawful

1) The act of inducing customers by fraudulent means

A) Requirements for illegality

The issues of the instant case are as follows: (a) the Plaintiff intended to attract competitors to deal with oneself; (b)

Part III of the supply price of the non-contractual model or the ex-factory price of the contract model in consultation with the third engineer

(Commencement of Act of Inducement of Customerss) Any portion unfilled to the agency shall be paid as a bounty to the agency, and any of them shall be paid.

payment to the consumer for discount sale (the completion of the customer inducement act)

any interest which is substantially favorable to the customer and which is not substantially favorable to the customer.

It is whether it constitutes a misunderstanding of customers as if it was provided.

However, Article 23 (1) of the Act and Article 36 (1) of the Enforcement Decree thereof [Attachment 1]

2] In order to constitute the act of inducing customers by fraudulent means under subparagraph 4 (b), 1 one’s own subscription

with respect to the contents, terms, conditions, and other transaction of such goods or services, 2

The actual fact is to mislead or mislead customers as being significantly superior or more favorable than that of the competitor.

(3) competition by misunderstanding customers that it is significantly poor or more unfavorable to them;

4. The act of inducing a customer of a business entity to deal with him/her and her, 4.

I would like to look at each requirement of illegality. Then, I would like to look at each requirement of illegality.

B) Whether it constitutes an illegality requirement

(1) Whether it is a transaction condition for goods or services supplied by itself.

According to the relevant provisions and legislative intent of the Act on the Unfair Trade Practices

transaction in the section of this section does not refer to the individual contract itself such as trade in the column of commerce, but to such individual contract itself.

as a greater meaning, it is deemed to mean the means of business activities or the general or trade order.

of this case (Supreme Court Decision 2008Du14739 Decided January 14, 2010). Accordingly, it is supplied by a person himself under the law.

transaction terms of goods means the stage of direct supply of goods supplied by a person;

not only the terms of transaction but also the part responsible for the formation of the terms of transaction at the subsequent stage of distribution.

It would be reasonable to say that it should be.

According to the above facts, the consumer purchases the device at the agency and makes the mobile communications service.

in the event of joining together with the agency, it is entitled to receive out-of-contract subsidies from the agency.

Subsidies other than the contract shall be the terms and conditions related to the devices supplied by the Plaintiff and mobile communications services.

As such, the Plaintiff and the consumer intermediate the agency regarding the terminal device of the business model.

It is reasonable to see that there exists a transactional relationship.

(2) Whether or not to mislead customers as substantially more favorable than actual ones.

(1) Whether it misleads a customer as more favorable than actual ones.

In light of the legislative intent of regulating the act of inducing customers by fraudulent means as unfair trade practices.

In order to establish the act of inducing customers by fraudulent means, the act of deception or deceptive inducement is committed.

It is sufficient that there is a concern for customers to be mistaken, and the result of such mistake must be caused to customers.

of this case. The term "misunderstanding" here means the goods or services of a customer; or

referring to the effect of the choice and decision of the service, and the concerns of mistake shall be

Possibility or risk of affecting the choice of goods or services (Supreme Court Decision 2002.12. 2002

26. The act of using a deceptive scheme as a mistake or site of the other party; 2001Du4306. The act of using a deceptive scheme is ordinarily intended.

any act that is intended to achieve shall mean any act that has caused an error or site of the other party and its use;

use of the other party, as well as mistake or in the site, shall also be subject to fraudulent means;

of this deceptive scheme. The elements of such deceptive scheme include not only deception, attack, and liability but also third parties.

The concept is much more expanded than the general concept of fraud. Therefore, the concept is more expanded than the general concept of fraud.

may also be accompanied by a mere exaggeration in the publicity or advertisement of the product, or a false representation.

In addition, in light of the general commercial practice and the good faith principle, there is a lack of deceptive nature as long as it can be accepted.

If the act of inducing customers by fraudulent means is also a requirement for criminal punishment on the one hand.

must be interpreted strictly in the text.

In this case, the plaintiff's act of releasing the factory price and ex-factory price in consultation with the three manufacturers and the plaintiff

In addition, after concealing any unfilled act through consultation, the agency shall be given a bounty with an amount equal to the agency.

the agency shall pay it as financial resources, and the agency shall not pay it outside the contract within the scope of the additional amount.

It should be viewed as a deceptive scheme that the act of allowing a discount sale by the method of granting subsidies. 4)

In the event that the price is discounted by granting a large amount of subsidies for the high ex-factory price, the first time:

From the time of presenting a low price, the consumer will purchase a high-priced terminal at a container.

In other words, consumers are suffering from ex-factory prices and incentives.

in order to select a device with a high discount rate compared to the ex-factory price, i.e., the percentage of the incentives;

consumers who have become aware of the discount rate in comparison with the delivery price through the agency are highly likely to do so, provided that they are high-priced.

It will be an omission in the starting phenomenon that the horse can be purchased at a discount.

In addition, Article 3 and the plaintiff shall hold consultations only with respect to the net of the contract model, and all other consultations.

in accordance with their management policies, three manufacturers in the case of a non-contractual model, and in the case of a contract model:

The Plaintiff, who is a radio operator, shall independently determine the scale of the incentives and include the amount in the ex-factory price.

If the supply decides the ex-factory price, it cannot be deemed unlawful under the principle of the freedom of pricing.

c. However, whether a market dominant enterprise has abused its position to determine the price unfairly;

In this case, however, the plaintiff's offer of three manufacturers in consultation with the three manufacturers.

It set a higher level of pay or set a higher level of the Plaintiff's ex-factory price.

In principle, a business operator at each stage of transaction determines and sells the price by himself/herself, and transfers the investigation.

If the supplier determines the ex-factory price upon consultation by the telecommunications company, the sales business operator as a whole

Competition between manufacturers, or between mobile operators, which has the same effect as price collusion; and

Since consumers' choice is restricted, the manufacturer and mobile carrier shall make a high amount of incentives through consultation.

on the other hand, with respect to marketing strategies at which the supply is set at a higher level of the ex-factory price, in any way;

It is highly necessary to regulate.

In other words, incentives paid by manufacturers and mobile carriers within the scope of a margin are normal, but encouragement is made.

The source was created by the influoration of the price, and the price influoration was made by the influoring machine.

If it is made under consultation with a mobile carrier, it would prejudice consumers' reasonable choice of goods.

The intention or possibility is greater, so in light of sound social norms and commercial practices.

It cannot be deemed as a normal incentive, and such a incentive shall not be deemed as inducing consumers.

The three manufacturers who paid them, because they are illegal incentives or fraudulent incentives; and

The plaintiff's act becomes illegal.

Whether or not it is distinguished to the Republic of Korea

The principle of clarity, which is a expression of the principle of a rule of law, is basically all the legislation restricting fundamental rights.

required. What is prohibited from the meaning of the norm shall be permitted.

corporation, if it is not known that it is an act, the legal stability and predictability can not be secured.

This is because it also enables arbitrary enforcement by the law enforcement authority (Supreme Court).

May 27, 2010 (Supreme Court Decision 2009Du1983 Decided May 27, 201). predictability is prohibited from being common sense.

It is necessary to predict whether the act has been done. However, the general public’s letter, as the case may be, shall be,

the average of the people of the category who intend to regulate a particular law, rather than referring to the average person of society;

It is reasonable to understand that person is at a level.

In general, the supplier shall freely determine the ex-factory price and the ex-factory price by the mobile carrier.

As such, all parts are not unreasonable, but can be accepted by social norms for trade practice.

5) The defendant can find that the delivery price is unjust when it is unfilled beyond the applicable scope. 5) The defendant has the ex-factory price.

12.3% of the amount of non-reasonable incentives, which is in the light of the substance and practice of the transaction.

Recognizing that it is hostile.

amounting to the act of inducing customers by fraudulent means that exceeds a certain ratio of the appropriate incentive;

the ex-factory price of the instant device has not been analyzed in economics, but the percentage of the incentives against the ex-factory price of the instant device shall be the same.

13. As average 34.74% from 2% to 62.5%, the average value is greater than the appropriate subsidy ratio.

In addition, considering all the circumstances shown in the argument of this case, it can be seen as a higher level.

When the shipment price is lower than the ratio of incentives, the normal head, such as inventory exhaustion incentives, etc. from the incentives;

Since most part of the gold accounts is low, and most of it is estimated to be created through a unfurging machine, and therefore:

Of the instant devices, the ratio of incentives to the ex-factory price is 12.3% in the case of devices adjacent to the 3% of the instant devices.

In fact, most of the Do grants can be deemed to have been created through a softener, and consumers are actually given such information.

The possibility that it would be significantly favorable to others may not be ruled out.

(3) Whether competitors attract customers of competitors to deal with oneself or not.

The other party, which is the object of the act of inducing customers by fraudulent means, that is, the customer of the competitor, shall conduct the competitive business.

A new transactional relationship with a person, not limited to the other party whose existing transactional relationship is maintained;

in the process of forming a competitor, including the other party who is likely to become a customer of the competitor.

(Supreme Court Decision 2001Du4306) and fraudulent means are likely to mislead the customers of competitors.

Even if there is no possibility of transaction with the principal by converting the result of the transaction;

It is not only a room but not an unfair inducement for customers.

According to the above facts, the plaintiff's act is currently using another mobile operator.

(b) The possibility that consumers who are likely to use in the future will purchase the Plaintiff's mobile communications services.

Since the plaintiff's act is good without necessarily purchasing it, the plaintiff's act is about the customer of the competitor.

It is judged that the transaction has been induced.

(4) Whether fair trade harm is harmful.

If the enterpriser induces the customer of the competitor by means of fraudulent means, the means of competition are not good.

set forth in subsection (1) of this section, to impair the desirable competition order in the market and to the quality and low quality of consumers;

is prohibited because it interferes with the selection of goods or services. The process of inducing customers by fraudulent means is prohibited.

Demity to trade shall prejudice the desirable competition order by means of price, quality, etc., of deception or deceptive scheme.

shall be determined mainly on whether it constitutes an unfair means of competition. This shall apply to an unfair means of competition.

Whether or not it is a matter of concern that a flag or deceptive scheme misleads or misleads the customer of a competitor.

(1) Comprehensive consideration shall be given as to whether there is a means to induce customers by deception or deceptive scheme;

(1) The effect due to the provision of profits, in the case of "inducing customers by unjust profits";

The effects of increase in rate or consumer welfare are unfair due to the unfairness of the means of competition.

If the effect of this chapter significantly exceeds the effect of this chapter, it is not a violation of the law, but is a customer's oil by fraudulent means.

In the case of "person", in principle, it is not recognized as an exception due to rationality, etc. in its nature. 6)

According to the above facts, the plaintiff let 3 manufacturers write down the supply price and the plaintiff write down the supply price.

The act of fraudulent means that provides subsidies with no substantial discount benefits by releasing the ex-factory price shall be mobile communications.

used as a major means of competition for service accession, and such action of the plaintiff shall be high-priced terminal

consumers' reasonable means of misunderstanding consumers as if they were purchased less in a low manner with subsidies;

Inasmuch as it obstructs choice and impedes competition by price and quality, fair trade

It is judged that there is a disturbance.

If the plaintiff's ratio of incentives to the ex-factory price does not exceed 12.3%, the amount of incentives shall be the amount of incentives.

If the ex-factory price does not decrease even after lowering the ex-factory price, the interest of consumers due to the increase of the final retail price.

It may temporarily reduce, but such abnormal price is contrary to the principle of supply and demand.

Since they are withdrawn from the market, the interests of consumers in the long term shall not be reduced.

2) Judgment on the Plaintiff’s assertion

A) As to the prohibition order

① The Plaintiff’s act of participating in the influence of the supply of three manufacturers only by fraudulent means.

Any person who has jointly induced a customer shall not be assessed as a person, and the plaintiff's act is judged as aiding and abetting.

Even if there is no provision regarding punishment for aiding and abetting unfair trade practices, so the law does not stipulate punishment for such aiding and abetting.

The plaintiff asserts that it cannot be held liable for the act of inducing customers by fraudulent means.

However, at a higher level for the supply price of non-contractual model as determined by Article 3.

In the process of requiring the payment and reflecting it in the supply price, the plaintiff's active and active action in the decision of the supply price.

As long as the plaintiff has participated in the action, the plaintiff shall have 3 manufacturers engage in the act of inducing customers by fraudulent means.

As it is recognized that the act of inducing customers was independently conducted by fraudulent means, the plaintiff is not limited to the plaintiff.

The above argument is without merit.

② The Plaintiff is incapable of independently determining the ex-factory price of a contract model due to the heat-based position.

or the like terminal price established in the market by three manufacturers;

It is merely accepted that the ex-factory price does not induce customers by means of unrecovering.

I asserts that this case did not.

However, the Plaintiff, the most high-speed business operator, receives a device late compared to other mobile operators.

Even if there are many cases, it is the ability to independently determine the ex-factory price of the contract model.

We cannot accept the allegation that there is no exception.

③ The Plaintiff’s attitude of each country’s competition law regarding the offering of rebates of subsidies, etc. is subject to previous regulation.

No false or exaggerated advertisements, etc. shall be involved in the course of offering the rebates from an enemy point of view.

The change is to broadly allow this in terms of the promotion of competition and the protection of consumer interests;

Therefore, the instant injunction asserts that it is unlawful.

However, the financial resources of the subsidy out of the contract are not from the 3rd manufacturer or the plaintiff's Madden, but from the price.

Since non-contract subsidies have been granted out of a parturgy, the increase in consumer welfare shall be increased by granting out-of-contract subsidies.

No effect does not arise, and even if non-contractual subsidies are not granted, the price softened shall be set.

The increase in consumer welfare will take effect. In addition, frequent provision of non-contract subsidies to the extent that the non-contract subsidies are dived.

section 14(b)(3)(3)(2)(3)(2)(3)(2)(2)(2)(2)(

As a result of distorted allocation, the above assertion is without merit.

④ The Plaintiff’s payment of a terminal subsidy not exceeding KRW 270,00 by the Korea Communications Commission is not unlawful.

under the judgment of the court, the defendant separately issued a disposition concerning the payment of the plaintiff's subsidy.

20,000 won or less is unreasonable as a double regulation, and in respect of the payment of a subsidy not exceeding KRW 270,000,00

The author argues that it is difficult to determine whether it is good or favorable.

To be subject to the overlapping regulation between the corrective measures of the Korea Communications Commission and the Defendant’s corrective measures

Korea Communications Commission shall take a corrective measure for the same act for the same reason, but the Korea Communications Commission shall

A subsidy of not more than 270,000 won shall be granted to a specific user in excess of 270,000 won.

on the ground that there is a possibility that there is a cost reimbursement for the discrimination against the user.

The plaintiff provided the consumer in this case, while the plaintiff provided the consumer in this case.

The gold concealeds that it is money created as separate financial resources regardless of the terminal price;

substantial discount benefits (the effect of reducing the cost of purchasing a device) notwithstanding the absence of such discount benefits;

correction of acts that have promoted the sale of their mobile communications services by making their quantity outside;

As a measure is taken, a disposition due to a separate reason for an act that is different from social norms.

In addition, in consultation with the three manufacturers, the Plaintiff determines the scale of the incentives, etc.

In this case where the degree of illegality is serious, the determination of illegality by the Korea Communications Commission of the scale of the incentive

The standard is less than 270,000 won in the light of normal transaction practices.

Therefore, the plaintiff's above assertion is without merit, since it cannot be seen as a bounty.

B) As to an order to pay penalty surcharges

The Plaintiff’s substantial profits accrue to consumers due to the payment of terminal subsidies.

The instant penalty surcharge payment order constitutes deviation, abuse of discretionary power, and constitutes an illegal act, and is a heat-oriented business operator.

The principle of proportionality that applies the imposition standard rate corresponding to a serious violation to the plaintiff

argument that is contrary to the law.

However, the sales effect inducing consumers to purchase the device due to the instant violation

A. It cannot be deemed that the Plaintiff did not gain any profit, and the basic nature of the penalty surcharge is administrative.

It is a penalty and it is nothing more than the addition of unjust enrichment restitution factors, and the plaintiff's heat.

Inasmuch as the circumstances of an enterprise are considered in the calculation stage of the penalty surcharge, the above argument is with merit.

(2).

3) Sub-decisions

The plaintiff's act constitutes an act of inducing customers by fraudulent means, and thus, the corrective order of this case is prohibited.

An order and a penalty surcharge payment order are lawful.

Even if there is a partial model that does not meet the apparent requirements of the instant device

An order of prohibition is not a disposition which is in appearance or substantially separate from a single disposition.

(1) The prohibition is merely a part of the model, which does not constitute a ground for disposition.

The order is not considered unlawful, and the subsidiary subsidy shall be included in the above part of the model.

As long as there is a deceptive element, it is clear that there is at least a deceptive element, so the damage to other enterprisers is related to the damage of others.

relevant sales may be deemed to be a product in connection with direct damage to consumers at least,

The penalty surcharge payment order is not illegal because it can be considered as included.

(b) Whether an order for disclosure and a report are lawful;

1) An order of disclosure

Details of the instant disclosure order: all devices sold by the Plaintiff (the Plaintiff’s manufacture and supply)

(a) the supply price and ex-factory price for each model of the terminal which does not hold unex-factory consultations;

disclosure of the details of the difference on the plaintiff's website shall prohibit the act of inducing customers by fraudulent means.

That is, the disclosure order of this case is made by fraudulent means. Therefore, the disclosure order of this case is made by fraudulent means.

of this case’s disclosure order may be made by fraudulent means if the purpose of the prohibition of the solicitation of a customer.

We examine whether it constitutes a measure necessary to correct the act of attracting guests.

The defendant's determination that the sales incentive of the business model decided by the plaintiff after consultation with the manufacturer was illegal.

The plaintiff's sales incentives that the plaintiff decided independently without the investigation and consultation are also illegal.

Therefore, the Plaintiff’s business model supply price and ex-factory price without consultation with the Plaintiff.

disclosure to the public by the difference is against the principle of proportionality (minimum principle of infringement), and the Plaintiff is against the principle of proportionality.

disclosure of the difference between the supply price and the ex-factory price of the business model after consultation with the investigation.

In violation of the first sentence of Article 12(2) of the Constitution, ‘the right to refuse to make statements' is guaranteed, ‘the principle of prohibition against self-contribution'.

(c)

After all, the disclosure order of this case is subject to prohibition and selective implementation

The illegality is illegal due to the lack of reasonableness or rationality in lieu of the order.

(ii)an order to report;

The instant order to report is not an independent corrective order from the disclosure order, but an disclosure order is implemented.

The defendant's internal confirmation of whether the implementation is well performed in order to secure it clearly.

It appears that the main disclosure order is illegal. However, the main disclosure order is illegal.

Since it is difficult to recognize the necessity of reporting order under the Act, it is also illegal.

4. Conclusion

If so, the plaintiff's claim is made in accordance with the proviso of Paragraph (1) of the attached Table 1 among the disposition of this case.

The order is justified only for the part seeking the cancellation of the order and of paragraph 3 (Order) order, and the remainder

The claim is dismissed for lack of reason.

In addition, according to the records of this case, the proviso of Paragraph 1 of the correction order in attached Form 1 among the disposition of this case

To prevent irrecoverable damage caused by the enforcement of Paragraph 3 by the Plaintiff

It is recognized that the suspension of execution is urgently required, or otherwise it has no significant effect on public welfare;

Since there is no data to regard it as a case that is likely to be done, whether the judgment in this case becomes final and conclusive ex officio.

shall cease to have effect and shall be so decided as per Disposition.

Judges

Judges Lee Jae-won

Judges Gangseo-Appellee

Judge Shin Jae-hun

Note tin

1) If the Plaintiff directly disclosed the recommended consumer price (factory price) to consumers, the Plaintiff’s goods are the same as the goods it supplies.

A small number of retailers in a certain area of trade significantly in excess of the price level continuously sold within that area;

as if the goods supplied by the supplier are sold relatively less infinitely by displaying and advertising the visa price (factory price)

In other words, it will be an issue of whether there is an unfair labeling or advertising act.

2) If the agency receives an excessive margin, the retail price reduction may be less than the retail price reduction, and only one selling agent may retire on a day.

In this regard, the term "surone-phone" appeared even.

3) The Defendant’s proposal to provide or provide unfair or excessive benefits at the plenary session on January 18, 2012 in light of normal transaction practices, at the plenary session on January 18, 2012

The provision on attracting customers by offering profits to attract competitors to deal with oneself was applied, but March 14, 2012

The plenary session changed that it was erroneous that it did not provide profits but provided profits as if it provided profits.

4) The Defendant’s examiner is aware of the agency’s incentives paid by the investigation or mobile carrier to the agency through a sobane, and sells at a discount to the consumer.

Unless otherwise, “A” was deemed to be an unrefilled portion of “A” [No. 23 No. 82 of the No. 7 minutes]. Only an unrefilled portion of “B” was deemed to be an unrefilled portion of the minutes]

If it is considered as a market dominant enterprise, it will be problematic whether it is an unfair price-fixing business entity.

5) However, the Defendant’s examiner constituted a deceptive scheme that means that “the soften per se should be uneased to the extent long,” not that is the same.

If, for example, there is a deceptive nature that the nature of the grass pool has been recognized, and if so, there is also a little amount of such grass pool.

If it is judged that it constitutes a violation of law, "(7) minutes of all the minutes of the 7th meeting and 90 pages)".

6) Reference to the Defendant’s guidelines for review of unfair trade practices.