[1] The purpose of Article 23 (1) 4 and Article 23 (2) of the former Monopoly Regulation and Fair Trade Act and Article 36 (1) [Attachment] of the Enforcement Decree of the same Act, based on which "act of trading with the other party by unfairly taking advantage of its trading position as one type of unfair trade practices," and the criteria for its determination

[2] The case holding that the court below erred by misapprehending the legal principles as to abuse of transaction status, or by failing to exhaust all necessary deliberations as to the contents of installment financing agreement, the inevitability of interest rate, and the reasonableness of increase interest rate, etc. in the judgment below which judged that measures of interest rate increase against the buyers of installment financing companies were not unfairly used in the transaction status, which is an unfair trade practice

[1] Article 23 (1) 4 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) and Article 36 (1) [Attachment Table] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 199) provides "an enterpriser's act of trading with the other party by unfairly taking advantage of his/her position in his/her own trade" as a type of unfair trade practices based on the above Article 23 (1) 6 of the former Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Feb. 5, 199) provides that "an enterpriser's act of trading with the other party by unfairly taking advantage of his/her position in his/her own trade." The purpose of this provision is to prevent a trade partner who has different economic power from doing fair trade in a relatively superior position or at least other party's trade activity. Whether a trade position is unfairly used in this context should be determined by considering the situation of the parties and trade.

[2] The case holding that the court below erred by misapprehending the legal principles as to abuse of trade position, or by failing to exhaust all necessary deliberations as to the contents of installment financing agreement, the inevitability of interest rate, and the reasonableness of increase interest rate, etc. in the judgment below which judged that measures of interest rate increase against the buyers of installment financing companies were not unfairly used in the transaction position, which is an unfair trade practice

[1] Article 23 (1) 4 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199); Article 36 (1) [Attachment Table] 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 16221 of Mar. 31, 199); Article 23 (1) 4 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199); Article 36 (1) [Attachment Table] 6 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Mar. 31, 199)

[1] Supreme Court Decision 96Nu9003 delivered on September 8, 1998 (Gong1998Ha, 2430), Supreme Court Decision 97Nu19427 delivered on June 9, 200 (Gong2000Ha, 1657), Supreme Court Decision 2000Du9359 Delivered on January 25, 2002 (Gong2002Sang, 593)

panle Investment Finance Co., Ltd. and 18 others (Attorneys Lee Ho-eng et al., Counsel for the defendant-appellant)

Fair Trade Commission (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 98Nu10792 delivered on April 27, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

1. According to the reasoning of the judgment below, it is difficult to view that the plaintiffs were 17 companies, Korea-U.S. Co., Ltd. (this company was merged with Korea-U.S., Jan. 1, 199), and the head of Korea-U.S. Co., Ltd. (this company was merged with Korea-U.S. Co., Ltd. on July 198, 198, and the head of the company was merged with Korea-U.S. Co., Ltd.) for a certain period of 9% of the total interest rate of 19% of the total interest rate of 9% of the total interest rate of 9% of the total interest rate of 9% of the total interest rate of 9% of the total interest rate of 9% of the total interest rate of 9% of the total interest rate of 9% of the total interest rate of 19% of the total interest rate of 9% of the total interest rate of 19% of the plaintiffs, which was 6% of the total interest rate of the total interest rate of 9% of the plaintiffs.

2. However, Article 23(1)4 and Article 23(2) of the Enforcement Decree of the Act and Article 36(1)6 of the Enforcement Decree of the Act provides that "an enterpriser's act of unfairly taking advantage of his/her trading position and trading with the other party" as a type of unfair trade practices under Article 36(1)4 and 6 of the Enforcement Decree of the Act. The purpose of this provision is to prevent an enterpriser from taking advantage of his/her position and disadvantage in the other party's trade in order to ensure fair trade between the trading parties who have a difference in economic power, or at least to ensure fair trade between the trading parties in a position that may have a significant influence on the other party's trade activity. Whether an enterpriser unfairly taking advantage of his/her position in trade in this context is likely to obstruct fair trade in light of the market and trading situation in which the parties are placed, the gap in the whole business capacity between the parties, the characteristic of the goods or services subject to the trade, the intent, purpose, effect and specific attitude of the act, and the degree and degree of disadvantage of the other party.

In light of the above legal principles, there were errors in the determination of terms and conditions of a standardized transaction agreement as follows. (A) The plaintiffs' interest rate for installment financing agreements entered into between the plaintiffs and the purchaser was diverse for each enterpriser and each enterpriser after the crisis of foreign exchange. Therefore, the court below should have determined the terms and conditions of individual agreement entered into between the plaintiffs and the purchaser and the terms and conditions of the standardized transaction agreement and the terms and conditions of individual interest rates for the purpose of determining whether the plaintiffs' interest rate was unfairly used for the transaction status. Thus, the court below should have determined whether there was a significant change in the terms and conditions of the standardized transaction agreement between the plaintiffs' interest rate and the purchaser's interest rate for the purpose of 12.6% per annum or 19.6% per annum because the court below did not reach the above determination that the plaintiffs' interest rate was unfairly effective for the reasons that there was no change in the terms and conditions of the standardized transaction agreement. (B) The court below's decision that the plaintiffs' interest rate was not effective for the reasons that the plaintiffs' interest rate was changed.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to abuse of trade position, which is an unfair trade practice under the law, or by failing to exhaust all necessary deliberations as to the inevitable nature and reasonableness of the interest rate, which is the content and interest rate of each individual loan agreement concluded between the plaintiffs and the purchaser, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)