Trod Holdings Co., Ltd. (Law Firm Spahn et al., Counsel for the defendant-appellant)

Fair Trade Commission (Law Firm Sejong, Attorneys Regular Dong-dong, Counsel for defendant-appellant)

October 17, 2012

1. The Defendant’s corrective order and penalty surcharge payment order on August 2, 2011 issued to the Plaintiff on August 2, 201 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. Plaintiff’s request to purchase membership to the golf course

As a CATV broadcasting business operator (SO), from August 2007 to November 2008, the Plaintiff, a TV home shopping business operator, a TV home shopping business operator, made a request to purchase membership rights for the purchase of the instant golf course membership rights (hereinafter “instant act”), and three home shopping operators paid deposits for the purchase of the instant golf course membership rights as shown in the following table.

The purchase price of each unit of deposited money in the main sentence shall be KRW 1.1 billion per the old unit on September 12, 2008, KRW 2.2 billion per the old unit on November 2, 2008, KRW 1.1 billion per the old unit on November 2, 2008, KRW 2.2 billion per the old unit on March 5, 2009, KRW 2.2 billion per the old unit on March 5, 2009.

B. The defendant's disposition

On August 2, 2011, the Defendant issued a corrective order and a penalty surcharge payment order (hereinafter “instant disposition”) on the ground that the Plaintiff’s instant act constitutes Article 23(1)4 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”).

[Reasons for Recognition] No dispute, entry of Gap evidence No. 2

2. Whether the instant disposition is lawful

A. Whether the status of the transaction is recognized

1) Plaintiff’s assertion

The plaintiff is not in the position of trade for three home shopping business operators.

2) Determination

Article 23(1)4 and (2) of the Fair Trade Act and Article 36(1) [Attachment 1] and 6 of the Enforcement Decree of the Fair Trade Act based on the aforementioned Article 23(1)4 and Article 23(2) of the Fair Trade Act stipulate "act of an enterpriser unfairly taking advantage of his/her trading position and trading with the other party" as a type of unfair trade practices. The purpose of Article 23(1)6 of the Fair Trade Act is to prevent an enterpriser who has a difference in economic power from abusing his/her position and gives disadvantage to the other party in his/her trade by abusing his/her position to allow fair trade between the parties who are in a position of relatively superior position or at least in a position that may have a considerable influence on the other party's trading activity (Supreme Court Decision 200Du9359 Decided

The following facts may be acknowledged in full view of the contents of evidence No. 1 and No. 6 through No. 11.

① As of April 201, the Plaintiff, along with its affiliated companies 14 weeks, shall operate SO business within 21 broadcasting zones among 77 broadcasting zones nationwide, and even within 15 broadcasting zones, operate exclusive SO business, coordinate and control the business activities of its affiliated companies, and negotiate TV home shopping business operators with TV home shopping business operators in a lump sum.

② The broadcasting channels are usually divided into S, BS, A, and B in TV home shopping industries. S is the case where a home shopping channel is available between terrestrial channels, A is the case where a home shopping channel is available between terrestrial channels, A is the case where a home shopping channel is located in the front of or following the terrestrial channel, while A is the case where a home shopping channel is located far from the terrestrial channel.

③ Home shopping business operators are TV home shopping, Internet shopping mall, and Kabro shopping business. Hyundai Home shopping accounts for 69.1% of sales in 2008 and 87.7% of sales in 2008, and where the broadcasting channels are improved at Grade A through S level or become worse, the sales amount has increased or decreased by 40%, and the remaining two home shopping companies are similar. Accordingly, the home shopping business operators were often the top priority for improving the broadcasting channels in Class A and maintaining S level in the broadcasting transmission contract with SO, and SO demanded an increase of a considerable amount of transmission fees.

In light of the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff as a CATV broadcasting business operator has a position in trade with three home shopping companies operating TV home shopping business using his own CATV broadcasting. Therefore, this part of the Plaintiff’s assertion is without merit.

(b) Whether a transaction was made by unfairly taking advantage of his/her position;

1) Plaintiff’s assertion

The plaintiff introduced three home shopping shopping companies to purchase the instant golf course membership rights, and there is no reason to allow them to purchase the instant golf course membership rights by unfairly taking advantage of the transactional position.

2) Criteria to determine whether a transaction was made by unfairly taking advantage of a transaction position

In light of the situation of the market and transaction in which the party's trade position is placed, the gap in the overall business capacity between the parties, the characteristics of the goods or services subject to transactions, the intent, purpose, effect, impact, and specific attitude of the act in question, the degree of superior position in the market of the enterpriser concerned, and the contents and degree of disadvantage that the other party would suffer, etc., it shall be determined and determined whether there is a concern over impeding fair trade as it goes against normal trade practices. Meanwhile, in the "voluntary purchase" under Article 36 (1) and [Attachment 1] subparagraph 6 (a) of the Enforcement Decree of the same Act, "goods or services that the other party does not intend to purchase" includes not only the goods or services supplied by the offender, but also the goods or services supplied by the business operator designated by the other party, and "act of compelling the other party to purchase" includes an objective situation that the other party could not purchase (Supreme Court Decision 200Du9359 Delivered on January 25, 2002).

3) Determination

In light of the following circumstances, which can be acknowledged by comprehensively considering the overall purport of the pleadings in the statement Nos. 1, 5, 7 through 10, 18 through 21, 8, 9, and 10 (including serial numbers), it is insufficient to recognize that the Defendant collected all the evidence submitted in the instant case and forced the Plaintiff to purchase the instant golf course membership rights to three home shopping companies using his trade position unfairly, and there is no other evidence to support this otherwise, the Plaintiff’s assertion in this part is with merit.

① Although the Plaintiff is deemed to have requested a person in charge of broadcasting channel marketing to introduce and purchase the instant golf course membership rights of five specialized home shopping business operators, including three home shopping centers, the Plaintiff may not be deemed to have explicitly expressed or proposed any disadvantage at least in the allocation of broadcasting channels or the determination of transmission fees, if the instant golf course membership rights are not purchased before and after such request.

The attached assets included in the main text include 746,490 32,812 79,1777,001 Korean Home shopping 518,49,000 549,8447,772 Hyundai Home shopping 94,1376,000 576,548 127,714 CJ Home shopping 904,24430,360,711,0492,798 502,61932,405,379,527277,72777, 714, CJ Home shopping 904,244360,360,71,0492,798,502,61932,40, 285, 379, 7277

② CJ홈쇼핑과 농수산홈쇼핑은 원고 운영의 종합유선방송 등을 통해 TV 홈쇼핑사업을 하는 사업자로서 3개 홈쇼핑사와 마찬가지로 원고에게서 이 사건 골프장회원권의 구입을 요청받았으나, 3개 홈쇼핑사와 달리 이 사건 골프장회원권을 구입하지 않았다. 그런데도 CJ홈쇼핑과 농수산홈쇼핑은 2009년과 2010년에 송출수수료 인상률을 3개 홈쇼핑사보다 더 낮거나 비슷하게 적용받았고, 특히 농수산홈쇼핑은 2010년에 S급 채널을 2개나 더 배정받았다. 그리고 3개 홈쇼핑사가 2009년과 2010년에 방송채널 배정이나 송출수수료 책정에서 CJ홈쇼핑과 농수산홈쇼핑보다 눈에 띌 정도로 유리하게 대우받았다고 인정할 증거가 없다.

③ There is no evidence to deem that the Plaintiff forced or demanded three home shopping mallss to convert into membership in the course of converting them into membership in 2010, or obstructed or avoided the return of deposits in advance.

④ In light of the capital, assets, net income, etc. of the three home shopping companies, the three home shopping companies are likely to suffer disadvantages if they purchase the instant golf course membership rights. In light of the fact that there is a possibility that the Plaintiff purchased the instant golf course membership rights in a management judgment that intends to make more profit in the allocation of broadcasting channels and the determination of broadcasting fees by making the Plaintiff more frequent and make the transactional relationship with the Plaintiff, and that it was possible for the Plaintiff to purchase the instant golf course membership rights. Thus, the mere fact that the Plaintiff had the purpose of supporting the dong Forest Development, which is an affiliated company, and that the advance deposit in the name of purchase of the instant golf course membership rights was paid before 9 to 15 months prior to the approval of the recruitment of golf course membership membership cannot be concluded to have violated the ordinary transaction practices.

3. Conclusion

The plaintiff's claim is reasonable and thus the disposition of this case is revoked.

[Attachment]

Judges Ansan-jin (Presiding Judge)

Note 1) hereinafter referred to as “S home shopping,” and as such, the name of the Company shall be indicated “stock company” only in the first reference and shall be omitted thereafter.

Note 2) hereinafter referred to as “instant golf course membership”

Note 3) The Plaintiff and 14 affiliated companies are collectively named as “Plaintiff, etc.”.