Homeb shopping Co., Ltd. (Attorneys Yang Woo-dae et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Associate, Attorneys Kim H-young et al., Counsel for the defendant-appellant)

August 26, 2016

The part concerning the above 2, 3, 5, and 6 of the corrective order stated in paragraph (7) and the part concerning the penalty surcharge exceeding 78,00,000 of the penalty surcharge payment order stated in attached Form 1 shall be revoked, respectively, to the Plaintiff as prescribed in Article 2015-180 of the Decision of June 3, 2015 (attached Form 1).

The plaintiff's remaining claims are dismissed.

One-five of the costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

The judgment that the Defendant’s corrective order and penalty surcharge payment order (attached Form 1) issued to the Plaintiff under [Attachment 1] No. 2015-180 of June 3, 2015 is revoked.

1. Basic facts and circumstances of dispositions;

[Ground of recognition] Facts without dispute, Gap 1 and 2 evidence, purport of the whole pleadings

A. The plaintiff's status

The Plaintiff is a company that sells goods supplied by multiple business operators and whose retail sales in the immediately preceding year are at least 1,00 million won, and is a large franchise and retail business operator under Article 2 subparagraph 1 of the Act on Fair Transactions in Large Franchise and Retail Business (hereinafter “Large Franchise and Retail Business Act”), and is a business operator under Article 2 subparagraph 1 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”).

(b) The structure and actual status of TV home shopping market;

1. The current status of home shopping markets;

The home shopping refers to a retail pattern in which information on goods is provided to consumers using the media, such as cable TV, camera, Internet, etc., and the goods are delivered to the desired place by a means of communication after receiving a purchase order from consumers.

The home shopping market is an over-point market structure in which only six business operators participate, such as the current chro shopping company (hereinafter referred to as “stock company” in the name of the company), sste shopping (approval in 1995), Hyundai Home shopping, Note 2), NAS shopping, NAS shopping (approval in 2001), and Plaintiff (Approval in 201), etc., are allowed to enter only the business operators approved by the Ministry of Science, ICT and Future Planning (Article 9(5) of the Broadcasting Act). The current market share of the home shopping market is as follows:

In the table (unit) contained in the main sentence: 30,732.24 (1) 30,210,24.24.24 (1) 32,362 (1) 25,056 23.5 (2) 28,538.22.8 (2) 30,715,715.22.0 (2), modern Home shopping 23,250,258.24.8 (3), 205.24, 205, 297.96 (2), 205.7.24, 25, 205, 194, 27.8 (4) 27, 24, 195, 36.4, 205, 194, 27, 194, 305, 196 (3), 196, 294, 25.36, 1964)

(2) The distribution structure of home shopping and transactions with suppliers;

If a home shopping business operator manufactures a product-related program and broadcasts through a CATV broadcasting business operator and cable TV transmission network business operator, the consumer orders the goods to the home shopping business operator, and the home shopping business operator requests the supplier to deliver the ordered goods directly or by entrusting the supplier to deliver them to the consumer. The home shopping business operator shall pay part of the product price received from the consumer after deducting it from the sales commission.

The transaction between the home shopping business operator and the supplier is conducted in the order of the Act on the Promotion of Products ? product Proposal ? Product Evaluation ? Quality Evaluation ? Basic Conclusion of this Agreement ? The transaction between the Plaintiff and the supplier is conducted in most of the above and entrusted transaction, namely, the transaction between the Plaintiff and the supplier, by which the Plaintiff sells the goods supplied by the supplier under its own name and the Plaintiff pays to the supplier the amount calculated by deducting a certain rate or a certain amount from the sales amount after selling the goods (hereinafter referred to as “supply amount”).

(iii)the method of receiving sales commission;

The method in which a home shopping company sells a product supplied by a supplier and receives the price is fixed rates (fixed rates), fixed amounts (fixed amounts) and mixed fees. The fixed rate method is that a home shopping company collects a certain amount of sales commission after selling a product through a broadcast. The fixed rate method is that a home shopping company receives a certain amount of sales commission regardless of the amount of sales, and the fixed rate method is that a home shopping company receives a fixed amount of money and receives a fixed amount of sales commission in addition to the fixed amount. In the mixed method, the fixed amount and fixed amount of sales are different for each home shopping company and it is presumed that the fixed amount are 80:20.

The home shopping company shall set the sales target amount and profit in accordance with the criteria of each individual in consideration of past sales performance of the same or similar goods by broadcasting time, sales commission revenue, sales net profit, growth target, etc. and determine sales commission based on these criteria.

C. The defendant's corrective order and penalty surcharge payment order

1) Details of the corrective order against the plaintiff

In June 3, 2015, the Defendant issued the same corrective order as stated in [Attached Form 1] on the ground that the Plaintiff violated the Large-Scale Distribution Business Act or the Fair Trade Act by committing the following acts:

(A)in respect of the contract, non-delivery and delayed delivery;

During the period from January 1, 2013 to October 31, 2014, the Plaintiff concluded a sales broadcast contract with 29 suppliers, including play, etc., on 50 occasions. The Plaintiff concluded a sales broadcast contract with 101 suppliers, including NAE and issued the contract face on 294 occasions on or after the date of sales broadcast. The Plaintiff’s act is in violation of Article 6(1) and (2) of the Act on Large-Scale Distribution Business.

B) Default on arrears

The Plaintiff sold consumer goods, etc. supplied by six suppliers, including ○○, etc. during the period from March to August 2014, 2013, and paid the sales amount after the lapse of 40 days (hereinafter “legal payment date”) from the monthly sales closing date, and did not pay a total of KRW 10,612,00 for interest accrued therefrom. The details are as shown in attached Form 2. The Plaintiff’s act is contrary to Article 8(1) of the Large-Scale Distribution Business Act.

C) the total cost of sales promotion events

The Plaintiff, during the period between August 30, 2013 and May 29, 2014, performed sales promotional events for sales promotion, without entering into a written agreement with eight suppliers, such as a leaflet, on the burden of sales promotional expenses, etc., and charged KRW 52,02,51, which is equivalent to 62.1% of the total sales promotional expenses, to the supplier. The Plaintiff’s act is in violation of Article 11(1) through (4) of the Large-Scale Distribution Business Act.

D) Demand for provision of unfair management information

원고는 2014. 8. 무렵 납품업자인 ‘◎◎◎◎’에게 경쟁 홈쇼핑사에 납품하는 상품의 모델명, 방송시간, 판매수량, 목표달성률, 할부기간 및 할인금액 등에 관한 정보를 요구하여 수집하였다. 원고의 이러한 행위는 대규모유통업법 14조 1항 에 위반된다.

E) Provision of disadvantage through mobile order inducement

During the period from January 2014 to October 2014, the Plaintiff entered into a mixed service contract with 153 suppliers, including Comera, with a total of 1,028 suppliers, with a total of 1,028 mobile phone service charges, and the buyer orders the part of fixed rate by telephone (including ARS), rather than with a buyer’s orders for the goods using the Internet (hereinafter “marb”) for the goods (the Plaintiff developed and distributes a smartphone app, which can purchase the goods), set a fee rate of about 2 to 4 times in the case of selling the goods (the Plaintiff developed and distributes a smartphone app, which is set at a higher level than 2 to 4 times in the case of selling the goods (the Plaintiff). The Plaintiff’s act of leading the buyer to the purchase order of the smartphone app, which is set at a higher level than 10% difficult to connect the counselor and 10% accumulated in the smartphone without limit on the number of purchases, or the Plaintiff’s act of selling the said goods to 3 mobile phone.

(ii) a penalty surcharge payment order;

The Defendant did not impose penalty surcharges on the Plaintiff regarding the act of paying interest in arrears among the above acts, and issued a penalty surcharge of KRW 936 million upon the Plaintiff’s remaining four acts except for the act of paying interest in arrears (attached Form 1) (hereinafter referred to as “instant disposition” in addition to the above corrective order and the penalty surcharge payment order, and the Defendant issued the instant corrective order and the instant penalty surcharge payment order, respectively.

D. Grounds for calculating penalty surcharges against the plaintiff

The grounds for calculating the Defendant’s penalty surcharge against the Plaintiff are as follows:

1. Relevant prices of supply and sales;

Since it is difficult to calculate the purchase amount of goods or sales because the act of violating the duty of delivery, the act of requesting unfair management information, and the act of providing disadvantage through the inducement of mobile order cannot determine the scope of related goods which are directly or indirectly affected by the act of violation, it is difficult to calculate the amount of goods purchase or sales. Therefore, the act of violating the duty of delivery in the contract, the proviso of Article 35(1) of the Large-Scale Distribution Business Act concerning the act of requesting unfair management information, and the proviso of Article 24-2(1) of the Fair Trade Act

The act of the sales promotion cost-sharing is a transaction on consignment and commission, and it is the price of related goods by considering the amount of KRW 714,790,893 (excluding value-added tax) excluding the amount of fees from the sales of the relevant goods as the amount equivalent to the purchase of the relevant goods as follows

Amount of commission received for sales of goods in violation of the table contained in the main sentence, and the cost of sales promotion shall be borne by 920,440,091 won 205,649,197 won 714,790,893 won

2) Criteria for calculation

A) Violation of the duty of delivery in writing

In light of the content and degree of the violation, such as the fact that the issuance in writing is directly related to the remedy of the right when the dispute arises, and that there is a significant effect of impairing the fair trade order, and that there was a part of the contract signed by the Plaintiff prior to the date of sales broadcasting, which occurred from the delay in signing the supplier even though the Plaintiff provided the supplier with the digital signature, the violation in this part shall be deemed to be a "serious violation" and the calculation standard for the amount of KRW 290,00,000 shall be set within the scope

B. An act of charging sales promotional costs

The ratio of the sales promotion cost to the supplier exceeding 50% is relatively high, and the substantial part of the profit from the sales promotion event is back to the supplier, in consideration of the details and degree of the violation, etc., the imposition rate of 20% corresponding to the "serious violation" shall be applied to the supply price related to the supply price of 142,958,00 won, which is 20% of the supply price of 714,790,893 won.

C) Demanding unfair management information

The number of relevant suppliers that the Plaintiff requested management information is only one, and the substantial damage to the supplier, etc. is not verified due to the provision of management information, etc., shall be deemed to be a "serious violation" in consideration of the details and degree of the violation, and the calculation standard for 100,000,000 won shall be determined within the scope of the amount of the standard amount for imposition (not less than KRW 100,000 but less

D) Giving disadvantage through mobile order inducement

The Plaintiff’s act of inducing the mobile order shall be deemed to be a “serious violation” in full view of the degree of undermining competition order caused by the violation, the current status of the relevant market, the impact on the market and its ripple effect, the degree of damage to the relevant consumers and business operators, such as acts likely to inflict significant economic damage on the supplier, and the fact that there are favorable aspects for consumers, etc.

(iii) the coordination by an act or an element of an actor;

Before the Defendant’s on-site investigation, the Plaintiff stored e-mails and business data stored in the computers of the employees belonging to the business headquarters and marketing department during the period from September 17, 2014 to September 19, 2014, in an external storage device, etc., and deleted the data stored in the computer using the deleted program, and made it difficult for the Defendant’s investigating official to conduct the on-site investigation. As such, the Plaintiff aggravated 10/100 of the above calculation criteria.

If the standard for calculating the mark violation(s)(s) in the main sentence of this paragraph is the adjusted amount(s) to increase or reduce the 290,00,000,000 per cent of the violation of the duty to deliver the 319,000,000 per cent of the violation of the duty to deliver the 142,958,000 per cent of the total of 157,253,000 per cent of the total of 100,000,000 for unfair management information demand of 110,000,000 per cent of 110,000,000 by the total of 429,958,000,000 per cent of the total of 922,958,000,015,253,000

4) Determination of penalty surcharges

If a contract is subject to a fixed-amount penalty surcharge, an act of violating the duty of delivery, an act of demanding unfair management information, and an act of providing disadvantage through mobile order inducement is difficult to see that the adjusted amount is excessive in consideration of the Plaintiff’s realistic ability, and the effect of the act of violation on the market, etc. It shall be determined as a penalty surcharge. As for an act of charging sales promotion costs, the adjusted amount is determined to significantly exceed the estimated amount of unfair profit gained by the Plaintiff from the relevant offense (8,49,000 won, which is the amount that the Plaintiff owes to the supplier), the amount of adjustment shall be determined as a penalty surcharge of KRW 78,00,000, which has reduced the adjusted amount by 50%. Accordingly, the penalty surcharge calculated accordingly is as follows (the amount less than KRW 8

In the case of the contract imposing the adjusted amount of violation of the table(s) in the main sentence of the penalty surcharge(s), the amount of the adjusted amount of the violation of the duty to deliver 319,00,000- 319,000 - 319,253,000 for sales promotion expenses of 157,250,000 △△△ 58,000,000 for 110,000 for - 110,000 for 110,000 for - 429,000 for 429,000 for 429,000 for - 429,000 for 0,000 for 00 for 1,015,253,0000 for 936,000 for 000 for east

Note 3) 78,000,000

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons, and thus should be revoked.

1) Absence of superior position in the transaction

The Plaintiff’s share in the home shopping market is low and the supplier is the client and the supplier can sell the goods through other distribution channels than the Plaintiff, such as home shopping companies, department stores, large-scale discount stores, Internet shopping malls, etc. In addition, goods sold through home shopping are not products manufactured or sold for the purpose of sale only through the Plaintiff, but products such as fee rates are not products manufactured or sold for the purpose of sale only through the Plaintiff. Terms and conditions of contract, such as fee rates, are determined through substantial negotiations between the Plaintiff and the supplier, and there are no conditions under which the Plaintiff can unilaterally be forced to enter into a contract favorable to the Plaintiff. Rather, a large number of other parties to the offense pointed out by the Defendant, among the other parties to the offense, have the status of transaction in the supplier. Therefore, since the Plaintiff cannot be recognized as the superior position in the transaction with the supplier, the Defendant breached the basic requirements for establishment.

2) On the face of a contract, there is no violation of prior delivery obligation

As long as the Plaintiff, after signing a written digital signature reflecting the terms and conditions of the contract determined by the agreement with the supplier in advance, sent it to the supplier and then sent it no longer possible for the supplier to revise the terms and conditions, the obligation to deliver the contract should be deemed to have been fulfilled. The Plaintiff’s liability to the Plaintiff for a case where the supplier did not affix a digital signature according to its internal circumstances is contrary to the principle of self-responsibility. The case where partial violation is deemed to constitute a violation of the Plaintiff’s duty of care, and the rate of violation is very low. Accordingly, it is unlawful to recognize the violation of the Act on Large-Scale Distribution for the entire contract and to issue a penalty surcharge.

(iii) the existence of justifiable grounds for the overdue interest payment

The Plaintiff failed to pay the sales amount because it was notified by the court of provisional attachment order on the claim for the sales amount that the Plaintiff requested by the supplier, and there is no room for the supplier to incur unexpected damages because the Plaintiff already agreed through the standard transaction contract between the parties as to the reservation of the sales amount. As such, there is justifiable reason for the Plaintiff’s reservation of payment, and therefore, the Plaintiff’s act does not constitute a violation of the Large-Scale

(iv) deviation from and abuse of discretionary power over pre-sale of sales promotional costs;

This part of the act is not organized and habitually conducted to transfer the supplier the sales promotion cost unfairly, but it is a formal violation due to the omission of documents in the course of performing the work, and the act of violation is merely 0.15% of the total amount of 5,104 broadcasting sales contracts, which were conducted during the period subject to examination (from August 30, 2013 to May 29, 2014) and is merely 0.15% of the total amount of 0.15% of the total amount of 5,104 broadcasting sales contracts, which were conducted during the period subject to examination (from May 30, 2013 to May 29, 2014). In particular, in light of the fact that the defendant's post and after the period pointed out by the defendant, if the supplier bears the sales promotion cost at the ratio of 68% and

5) The absence of management information request and the absence of illegality

Although the Plaintiff received data from the supplier on the sales products, sales performance, etc. in other home shopping broadcasts, it cannot be deemed that the supplier voluntarily provided data related to sales performance to introduce its products and show sales performance in the process of requesting a home shopping broadcast programming, and that the Plaintiff did not “request.” Since the Plaintiff did not use these data for an unjust purpose, it cannot be deemed that such act by the Plaintiff is unjust.

6) The absence of illegality in mobile text inducement

The Plaintiff solicited mobile orders from the Home shopping Broadcasting to increase the volume of mobile orders in order to make both the supplier and the Plaintiff gain profit by boosting the mobile order method, and did not recommend mobile orders from the supplier in order to receive more fees from the supplier using the difference between the fixed rate applicable to the mobile order and the rate applied to the mobile order. Moreover, the mobile order and the mobile order are made through a separate medium, and the cost structure change in the cost structure, the mobile order is made in line with the mixed system and the mobile order are in line with the fixed rate, and the sales of the supplier increase in the volume of orders through mobile order. As such, it is difficult to readily conclude the disadvantage of the supplier due to the Plaintiff’s mobile order by simply comparing the ratio of the fee system of the mobile order and the fee rate of the mobile order with the rate applied to the mobile order, and considering the circumstances in which the fee rate applied to the mobile order was already shared to the supplier prior to broadcasting, the Plaintiff’s act cannot be deemed unfair.

B. Relevant statutes

[Attachment 3] The entry in the relevant statutes is as follows.

C. Determination

1) Whether the Plaintiff has a superior position in the transaction

According to the provisions of Article 3(1) and (2) of the Large Franchise and Retail Business Act, the Act on Large Franchise and Retail Business does not apply to transactions in which a large franchise and retail business operator is not deemed to have a superior bargaining position to a supplier or sales floor tenant (hereinafter “supplier, etc.”). Whether a superior bargaining position exists shall be determined by comprehensively taking into account the structure of the distribution market, consumer consumption status, transaction dependence on suppliers, etc., transaction dependence on a large franchise and retail business operator, characteristics of the goods subject to the transaction, scope of distribution business conducted by an enterprise group or a large franchise and retail business operator

Meanwhile, Article 36 (1) 4 of the Enforcement Decree of the Fair Trade Act and Article 36 (1) 6 of the Enforcement Decree of the Fair Trade Act based thereon provide that "an enterpriser's act of unfairly taking advantage of one's own trading position and trading with the other party" as a type of unfair trade practices under Article 23 (1) 4 and 36 (1) 6 of the Enforcement Decree of the Fair Trade Act provides that "an act of trading with the other party by unfairly taking advantage of one's own trading position." The purpose of this provision is to prohibit an enterpriser who has a relatively superior position or at least a position that can have a considerable influence on the other party's trading activity from abusing his position to trade in order to ensure fair trade between the parties in the real transactional relationship with each other (see Supreme Court Decision 200Du3801, Sept. 27, 200). The issue of whether an enterpriser is a superior position should be determined by considering both the market situation in which the parties are placed, the overall business ability gap between the parties, and the characteristics of goods subject to trade (see Supreme Court Decision 97Nu

In light of the aforementioned legal principles, the Plaintiff may be recognized as having a superior position in the transaction with the supplier in light of the facts acknowledged earlier, the statement of No. 5, and the following circumstances acknowledged by the purport of the entire pleadings. Therefore, the Plaintiff’s assertion of this point is without merit

A) The Home shopping business is a market with high barriers to entry because it can enter the exclusive business of the government only with the approval of the government. Since the business operator does not have more than six places and limited broadcasting hours, supply is insufficient compared to the demand desired for broadcasting, and thus, there is a lack of supply competition among suppliers. The same applies to the case where the Plaintiff falls under five market share among Home shopping business operators.

B) As the Plaintiff’s home shopping business operator has formed a nationwide high recognition, consumers believe the Plaintiff’s broadcasting and purchase products. Since the Plaintiff’s home shopping business is performed not only in the distribution of products but also in publicity, suppliers desire to enter into and maintain a continuous transaction contract with the Plaintiff, such as the Plaintiff with a nationwide distribution network. This constitutes the Plaintiff’s business ability, irrespective of the supplier’s scale.

C) Since sales through home shopping has advantages of allowing a nationwide sales through nonstores, and consumption layers are differentiated from department stores, Internet shopping, etc., taking into account such factors as the establishment of sales strategies, promotional effects, cost, distribution scope, etc., it is not easy for suppliers maintaining transaction relations with the Plaintiff to reduce their transactions with the Plaintiff and replace them with other distribution forms.

2) Whether any disposition regarding failure to deliver or delay in the contract is unlawful

A) Whether this part of the corrective order is unlawful

According to the Large Franchise and Retail Business Act, a large franchise and retail business operator shall, upon entering into a contract with a supplier, etc., provide the supplier, etc. with a written statement (including an electronic document) stating the contract details prescribed by Presidential Decree, such as type of transaction, and this document shall be signed (including an officially certified digital signature) or signed and sealed by a large franchise and retail business operator and a supplier, etc., respectively (Article 6(1) and (2) of the Large Franchise and retail Business Act). In such a case, the duty to immediately deliver a contract is to prevent disadvantages to a subcontractor caused by uncertainty of the terms and conditions of the contract in advance by clearly stating the terms and conditions of the contract before broadcasting in preparation for the cancellation or change of the contract or non-performance of the contract terms and conditions, and to prevent ex post facto disputes between the parties. To demand the signature of both a large franchise and retail business operator and a supplier in accordance with Article 6(2) of the Large Franchise and Retail Business Act is to ensure that the written statement issued to this purport can perform its function as a proof of the contents made by mutual agreement between the parties.

In particular, in the case of home shopping, since it is usual to determine the terms and conditions of a specific product, sales volume, broadcasting hours, etc. after a home shopping company entered into an oral basic contract with a supplier prior to a number of months prior to the broadcasting day, it is highly likely that a large franchise and retail business operator would suffer disadvantages by modifying or cancelling programming immediately before the broadcasting day even after the conclusion of a broadcasting contract. In addition to these circumstances, even though the above written document is not an essential requirement for establishing a large franchise and retail business law to take effect, the mere unilaterally delivering a document that does not have the signature of both parties alone cannot be deemed to have been delivered to the extent that it conforms to the purport of introducing the Act on Large-Scale Distribution Business. This doctrine holds true even if the Plaintiff, as alleged by the Plaintiff, could not unilaterally modify the contents of the written contract after the Plaintiff sent the contract through the electronic contract system.

According to the facts without dispute, Gap 24 and Eul 1's each entry and the whole purport of the pleadings, it is recognized that the plaintiff delayed delivery or non-delivery of the contract where the plaintiff and supplier's signature is entered on 344 occasions between January 1, 2013 and October 31, 2014, as shown in the [Attachment 4] and the period from January 1 to October 31, 2014.

Examining the above facts in light of the legal principles as seen earlier, it is difficult to view that the Plaintiff immediately performed the obligation to deliver the contract under Article 6(1) and (2) of the Large Franchise and Retail Business Act. Thus, the Defendant’s corrective order (1) is lawful, and the Plaintiff’s assertion of grounds for appeal is without merit.

B) Whether this part of the penalty surcharge order is unlawful

Whether to impose penalty surcharges on violations of the Act on Large Franchise and Retail Business and when imposing penalty surcharges, it is discretionary to determine the amount of penalty surcharges specifically within a certain scope prescribed by the Act on Large Franchise and Retail Business and the Enforcement Decree thereof. However, if there are grounds such as misunderstanding of facts constituting the basis for imposing penalty surcharges in relation to the exercise of discretion or violating the principle of proportionality and equality, it may be deemed illegal as a deviation or abuse of discretion (see Supreme Court Decision 2006Du4226, Feb. 15, 2008).

Meanwhile, according to the proviso of Article 35(1) of the Large-Scale Distribution Business Act, a fixed amount of penalty surcharge shall be imposed within the scope of KRW 500 million with respect to a violation for which the calculation of sales is difficult, and the standard for imposing penalty surcharges on a business entity violating the former Act on Large-Scale Distribution Business established upon delegation by Article 28 of the Enforcement Decree of the Act on Large-Scale Distribution Business (established by the Fair Trade Commission Notice No. 2012-4, Feb. 28, 2012) is to determine the standard amount for imposing penalty surcharges depending on the content and degree of the violation.

Since it is difficult to calculate the sales amount of the contract as a result, the violation of the duty to immediately deliver the contract is subject to a fixed-amount penalty surcharge. However, the evidence revealed as follows: (a) Among the 344 cases in which the Defendant pointed out, the supplier, a large enterprise, is a large enterprise and the disadvantage caused by the delayed delivery of the contract is relatively low; and (b) the supplier, despite having sent the contract before the date of broadcasting, has delayed signature by granting approval or delayed approval; (c) such a case is difficult to be considered as having great probability of responsibility or criticism by the Plaintiff; and (d) excluding this case, the Plaintiff is merely 94 cases in which the responsibility of the violation can be assessed to be serious (the following part dealt with).

A person shall be appointed.

In addition, taking account of the following: (a) the frequency of non-delivery or delayed delivery of the contract due to the Plaintiff’s liability is only 0.7% when compared to the entire supply contract concluded by the Plaintiff for the same period; (b) the Defendant’s existence of an existing contract with the same content if there are many other contracts; and (c) there is no dispute arising between the supplier and the supplier due to the nonperformance of this part of the contract, it is difficult to deem the degree of the Plaintiff’s

Therefore, the defendant's order to pay penalty surcharges within the scope of the standard amount of imposition of penalty surcharges for the violation of this part of the plaintiff's violation is unlawful. The plaintiff's ground for appeal pointing this out is with merit.

3) Whether a disposition on overdue interest is unlawful

A) Facts of recognition

[Ground of recognition] Facts without dispute, Gap 3, 20, 26 evidence (including virtual number; hereinafter the same shall apply), Eul evidence 1, the purport of the whole pleadings

(1) The Plaintiff delayed the payment of the price of supply to six suppliers, such as ○○, etc., as indicated in attached Form 2, by the statutory due date.

(2) With respect to the claim for the supply of goods by the above six suppliers (‘the claim for the sale proceeds to be paid by the Plaintiff at present and in the future by the supplier’s suppliers’), a provisional seizure or seizure order was issued by the court prior to the arrival of the due date as indicated in the following table

본문내 포함된 표 납품업자 채권가압류결정 일자 ○○○ 2013. 5. 16자 채권가압류결정 △△△△△△패션 2013. 8. 29.자 채권가압류결정 등 □□□ 2013. 12. 18.자 채권가압류결정 ◇◇ 2014. 2. 21.자 압류 및 전부명령 ☆☆☆☆☆ 2014. 2. 26.자 채권가압류결정 등 ▽▽▽▽▽▽ 2014. 7. 23.자 채권가압류결정

(3) According to Article 27(3) of the Standard Transaction Agreement entered into by the Plaintiff with suppliers, the Plaintiff has the right to withhold the payment of the price in cases where “where there is a court’s decision of provisional attachment, etc. on the supplied price claim (i) or “where it is objectively deemed that it is difficult to conduct business activities or A/S, etc. normally due to the aggravation of serious financial circumstances, such as the failure of the supplier or bankruptcy, etc.

(4) 원고는 채권 가압류 등이 납품대금 중 일부에라도 그 효력을 유지하고 있는 경우에는 다음의 표와 같이 납품대금을 공탁하였고, 가압류가 모두 해제된 ☆☆☆☆☆에 대한 납품대금은 그 해제일(2014. 6. 16.)에서 가까운 2014. 7. 2.에 이를 지급하였다.

○○○○○ on June 20, 2013, the date of deposit in the attached supplier contained in the main text, on October 21, 2014, △△△△△ on October 22, 2014, △△△△△△ on October 23, 2014, ○○○○○ on the date of deposit in the attached supplier, which was located in the main text, and on October 23, 2014, ○○○○○○ on September 25, 2014.

(5) 이 사건 처분일(2015. 6. 3.) 당시 위 가압류들 중 ☆☆☆☆☆, ▽▽▽▽▽▽의 채권에 대한 것은 해제되었고, 나머지 4개사에 대한 것은 여전히 효력이 유지되고 있었다.

B) Specific determination

According to the following circumstances recognized by the above facts, this part of the corrective order (2.3) is unlawful, and the plaintiff's assertion pointing this out is with merit.

(1) Since the Plaintiff, who is a third-party debtor to whom the provisional attachment, etc. on the current and future claim for the supply of goods is served, can withhold the payment of the price of goods according to the entrustment contract with the supplier, it is difficult to view that the payment of the price of goods has been made immediately (attached Form 2) as the payment date has run.

(2) 가압류가 해제된 경우(☆☆☆☆☆) 또는 가압류금액이 전체 납품대금보다 적은 경우(○○○, ▽▽▽▽▽▽)에도 가압류 등이 있었던 사실만으로 계약서 27조 3항 4호의 ‘중대한 자금사정의 악화로 정상적인 영업 등을 수행할 수 없는 객관적인 상황’이 발생하였다고 의심하여 원고가 이를 확인하는 기간 동안 대금의 지급을 보류할 여지가 있고, 대규모유통업법 8조 와 그 위임을 받은 구 상품판매대금 지연이율 고시(2015. 3. 6. 공정거래위원회 고시 2015-1호로 개정되기 전의 것)가 대금의 미지급에 대하여 연 20%의 높은 지연손해금률을 적용하는 것은 원고의 지급지연에 귀책사유가 있는 경우를 말하는데, 위와 같이 가압류가 있었던 경우에까지 위 지연손해금율이 적용된다고 단정하기도 어렵다.

(3) The first sentence of paragraph (2) of the instant corrective order, despite the existence of provisional seizure, etc., orders a supplier who is a provisional attachment obligor, to prohibit the repeated payment on the premise that the Plaintiff would pay the price of supplied goods to the supplier who is a provisional attachment obligor

(4) ☆☆☆☆☆, ▽▽▽▽▽▽를 제외한 나머지 4개 납품업자의 채권에 대한 가압류 등은 아직 그 효력을 유지하고 있는데도 이 사건 시정명령 3항은 위와 같은 가압류의 효력이 미치는 납품대금의 지연손해금에 대하여도 가압류채무자인 납품업자에게 지급할 것을 명하고 있어 그 문언 자체로 역시 부당하다.

4) Whether a disposition regarding the pre-sale of sales promotional costs is unlawful

According to Article 2 subparagraph 8 of the Large-Scale Distribution Business Act, the term "sales promotional event" means any event or activity conducted for the purpose of promoting sales by increasing demand for goods, irrespective of the name or form. According to Article 11 (1) and (4) of the Large-Scale Distribution Business Act, a large franchise and retail business operator shall not impose expenses incurred in a sales promotional event (sales promotional expenses) on suppliers, etc. without entering into an agreement with suppliers, etc. as prescribed by Presidential Decree before conducting such sales promotional event, and even in cases where the rate of sharing is determined by an advance agreement, the share of sales promotional expenses of suppliers, etc. shall not exceed 50/100.

According to the facts without dispute, Eul evidence No. 2 and the purport of the entire pleadings, it is recognized that the plaintiff performed the exercise of sales promotion for the period from August 30, 2013 to May 29, 2014, when it did not enter into a written agreement with eight suppliers, such as electoral farms, on the burden of sales promotion expenses, etc., and levied 52,02,51 won on the supplier, which is equivalent to 62.1% of the total sales promotion expenses, out of 84,49,555 won, as follows:

본문내 포함된 표 연번 방송일시 상품명 납품업자 분담금액(원)(분담비율) 약정서존부 납품대금(원)(부가가치세 제외) 납품업자 피심인 1 2013-08-30 다향오리 훈제 슬라이스 15+3팩 ㈜팜덕 7,200,000(73%) 2,611,119(27%) X 73,024,090 2 2013-09-01 마미로봇 청소기 마미로봇 26,390,000(54%) 22,637,497(46%) X 214,261,200 3 2013-09-02 굿웨이 스팀큐 다리미 유라클 8,960,000(72%) 3,463,032(28%) X 125,923,641 4 2013-09-03 양가죽 웨지힐 ㈜천지스카이폰드 20,597,280(77%) 6,081,756(23%) X 15,4321,221 5 2014-04-07 믹스블라우스3종 ㈜티에이치디아이앤씨 1,497,000(52%) 1,400,589(48%) X 31,623,283 6 2014-04-08 레이어드롱블라우스 ㈜이퀘스트 7,919,500(54%) 6,815,612(46%) X 60,150,200 7 2014-05-22 린넨블라우스2종+민소매탑(A1) 케이티엘인터내셔날㈜ 9,172,775(57%) 7,017,826(43%) X 41,574,718 8 2014-05-29 섬머라인팬츠4종 ㈜정한실업 2,763,000(58%) 1,995,120(42%) X 13,912,538 합계 84,499,555(61.9%) 52,022,551(38.1%) 714,790,891

As above, the Plaintiff’s violation is recognized, and the Defendant’s violation is considered as “serious act” and the imposition standard rate of 20% has been applied according to the notification IV.1.b., and the calculation standard accordingly has been mitigated by 50% considering that the Plaintiff’s excessive amount compared to the Plaintiff’s unjust enrichment scale. Therefore, even if considering all the circumstances cited by the Plaintiff, it is difficult to deem that the Defendant’s order to pay penalty surcharge in this part deviates from and abused the discretion.

Therefore, this part of the corrective order(4) and the penalty surcharge(78,000,000) are legitimate, and the plaintiff's assertion about this point is without merit.

5) Whether an act of demanding unfair management information is unlawful

A) Relevant legal principles

Article 14(1) of the Large Franchise and Retail Business Act provides that “Large franchise and retail business operators shall not unfairly require a supplier, etc. to provide any of the following information,” and Article 14(1)1 and 2 of the Enforcement Decree of the Large Franchise and Medium Franchise and Medium Business Act provides that “Information on the terms and conditions of supply of goods supplied by a supplier to another business operator,” and “information on the terms and conditions of sale occupants to enter the store of another business operator,” and Article 11(1)2 of the Enforcement Decree of the same Act provides that “The supplier, etc. shall supply goods to another business operator or sell goods to another business operator at the store of the other business operator, and the sales-related information, such as sales volume and sales volume by period, etc.” shall be prohibited from being unfairly demanded. Meanwhile, even if such management information is provided, a large franchise and retail business operator may request the supplier, etc. to provide documents stating the purpose of demand in advance and confidentiality.

In full view of the provisions and purport of the Act on the Large-Scale Distribution Business concerning the request for provision of management information, it is not illegal on the ground that a large franchise and retail business operator has requested a supplier, etc. to provide management information. However, considering the purpose of the request for provision of management information, the contents of the business information subject to the request, the method and mode of the request, the intensity of the request, the contents and degree of disadvantages anticipated to occur if the supplier did not comply with the request, the measures to be utilized for the supplier, etc., the existence of inevitable circumstances requiring the provision of management information, etc., it should be separately recognized that such request for provision of management information is unfair. The burden of proof of illegality is against the Defendant who has issued a corrective order, etc. on the ground that the Plaintiff violated Article

B) Specific determination

을3호증의 기재에 의하면, 납품업자인 ◎◎◎◎의 직원 소외 1이 2014. 8. 7. 원고 직원 소외 2 과장에게 “과장님 말씀하신 캐논 100D 방송실적 정리하여 송부 드립니다. 확인 후 더 필요하신 부분 있으시면 연락 부탁드립니다.”라는 내용의 이메일을 보내면서 ◎◎◎◎가 다른 홈쇼핑(씨제이오, 우리)에서 5회에 걸쳐 진행한 방송시간, 판매물품, 분당효율, 목표달성률, 판매량, 할부개월, 진행시간을 정리한 표를 전송한 사실은 인정되나, 그러한 사실만으로 위와 같은 경영정보 제공행위가 원고의 부당한 요구에 따른 것이라는 점을 인정하기에 부족하고 달리 이를 인정할 증거가 없다. 오히려 갑18, 23호증의 각 기재, 증인 소외 1, 소외 2의 각 증언에 의하면, 원고에게 캐논 100D 제품을 납품하길 원하였던 ◎◎◎◎의 직원 소외 1이 먼저 원고의 직원 소외 2에게 연락하여 “다른 홈쇼핑에서 좋은 방송실적을 내었는데 관련 자료를 보내주겠다.”면서 문자메시지로 다른 홈쇼핑 방송실적을 발송한 사실, 이에 소외 2가 소외 1에게 “방송실적이 좋기는 한데 방송조건에 따라 방송실적이 크게 달라질 수 있는 것 아니냐”며 그 보완을 요청하자 소외 1이 다시 위와 같은 내용의 이메일을 보낸 사실이 인정되므로, 위 인정사실에 의하면 원고가 피고에게 부당하게 경영정보제공을 ‘요구’하였다고 보기 어려울 뿐 아니라 그러한 요구가 ‘부당’하다고 보기도 어렵다.

Therefore, both the corrective order(5) and the penalty surcharge payment order(110,000,000) are illegal. The plaintiff's assertion pointing this out is with merit.

6) Whether a disposition regarding disadvantageous provision through mobile order inducement is unlawful

A) Relevant legal principles

In full view of the provisions of Article 23(1)4 and (2) of the Fair Trade Act, Article 36(1)6(d) and (2) of the Enforcement Decree of the Fair Trade Act, in order for an abuse of trade position to constitute an act of disadvantageous offer to the other party, the fact that the content of the act is somewhat unfavorable to the other party. It is insufficient to find that one party unfairly uses its trading position to the extent that it can be deemed identical with compulsory purchase, coercion of offering profits, compulsory sale target, etc., and that it is recognized that the transaction conditions were established or changed, or that it was at a disadvantage in the course of its implementation (see Supreme Court Decision 2001Du9646, Dec. 26, 2003). The term "in this case, disadvantage provision" refers to the act that an enterpriser gives disadvantages to the other party in the course of establishing or changing transaction conditions against a third party in trading position, or in the course of its implementation. Thus, the enterpriser cannot be deemed to have provided relatively unfavorable disadvantages to the other party to the transaction by offering profits to a third party.

B) the facts of recognition

[Ground of recognition] Facts without dispute, Gap-5, 6, 25, 27 evidence, Eul-4, and the purport of the whole pleadings

(1) In selling home shopping, TV and mobile media are different in terms of cost structure, type of sales, predictability of sales volume, etc. as follows:

Transmission fees for major costs of TV mobile media in the table contained in the main text, broadcast production costs, mobile app development and site operation expenses, and sale unpredictable (non-string) sales volume forecastable (non-string + fixed rate) or fixed rate regardless of the centralized time of sale during the broadcast time of the Internet line costs, or fixed rate;

(2) During the period from January 2014 to October 2014, the Plaintiff entered into a contract with 153 suppliers, including Commera, on a total of 1,028 TV media, with a total of 153 suppliers, including Commera, and set fees for mobile media in a mixed method, and set the mobile fee rate for mobile media at a fixed rate. Of TV commission, the Plaintiff set the mobile fee rate at a level higher than 2 to 4 times the rate of the fixed rate of the TV portion. The fixed rate of the TV portion in the said contract was approximately 13.86% on the average, and approximately 35.43% on the average of the mobile fee rate.

(3) On the broadcasting screen under the above 1,028 transaction contract, the Plaintiff: (a) stated in the broadcasting screen that “the 1,028 unit service provider is unable to connect counselors; (b) 10% +10% + 10% +; (c) stated the contents of “the 10% + 10% + 10% reserve each time he lives in smartphones; or (d) stated that the broadcast operator notified the same contents verbally.

(4) When comparing the same product as broadcasted on October 2013 and October 2014, the average amount paid (amount received by a company) by a company expected to be divided increased by 23% compared to the average amount on October 2013, 2014, and the average amount paid by a company (amount received by the company) was increased by 25%.

C) Specific determination

According to the following circumstances recognized by the above facts, this part of the corrective order (6) and the penalty surcharge payment order (429,00,000) are all unlawful. The plaintiff's assertion pointing this out is with merit.

(1) Inasmuch as TV commission is a mixture of fixed amounts and fixed rates, and mobile fees are set at purely fixed rates, it is difficult to readily conclude that sales through mobile media are always disadvantageous to the supplier on the grounds that the fixed rate of TV commission is relatively lower than that of the mobile fee.

(2) In fact, compared with the mobile rate of TV conversion rate in the 1,028 TV commission commission in the 1,028 TV commission, which is a mixture in question, calculated by converting the fixed amount into a fixed amount 5) and then dividing it into the fixed amount (i.e., daily standard sales amount per hour based on the performance value in 2014 KRW 134 million x broadcasting time weight) x the mobile rate, it may be deemed that the TV conversion rate is higher than the average of approximately 41.06%, which is the mobile fee rate, (i) the average of approximately 35.43%, which is the mobile fee rate, (ii) the specific method of conversion (i.e., the following table 7). Ultimately, it is difficult to view the supplier that the mobile rate applied to the supplier with respect to the sale of the TV.

A table (unit: : 1,540.58 1,543 206,72230,140,680 41.47 41.07.08, 890 7.08, 890 2, 97.97 2, 132, 285, 686.285, 6865, 13286, 5865, 134, 5865, 195, 134, 195, 134, 195, 134, 195, 134, 195, 56.84, 506, 1986, 2085, 306, 506, 196, 1985, 196, 196, 1985, 206, 1985

(3) The purpose of the Home shopping broadcast is not only the sale of telephone (ARS) during the broadcasting hours, but also the sale of broadcasting products ultimately maximizes the sales of broadcasting products. Therefore, the Plaintiff’s publicity of not only the goods themselves but also the various routes through which consumers can purchase the said products seems to be in line with its purpose. In particular, there are cases where the Plaintiff, by providing the said caption or oral guidance, intended to order the consumers to call, but also the Plaintiff would make a decision to purchase the said products on the grounds of the discount and reserve benefits of the consumers whose intention to purchase has not been determined. In full view of these cases, it cannot be readily concluded that the Plaintiff might be disadvantageous to the supplier.

(4) Since the mobile activation of home shopping was spreaded after October 2013, and multiple home shopping business operators, including the Plaintiff, had been widely engaged in a broadcast by way of encouraging the use of smartphone apps, it seems that the Plaintiff knew or could have sufficiently anticipated that the mobile media was promoted in TV broadcasting even with the supplier in 2014 when the Plaintiff concluded the entrustment contract as seen earlier.

(5) In addition, comparing the broadcast results of the same product on October 2014, 2014, which was subsequent to the activation of mobile text prior to the activation of mobile text, it is difficult to deem that the Plaintiff provided “unfairly” disadvantage to the supplier to the extent that it would be identical to compulsory purchase, coercion of provision of profits, and compulsory sale, etc., by recommending the Plaintiff to make a mobile text, in full view of the fact that the efficiency per minute and the expected sales of the company therefrom increase, and the Plaintiff promoted benefits to the mobile text in the same way.

3. Conclusion

Therefore, the part concerning the corrective order in the disposition of this case (attached Form 1) issued by the defendant to the plaintiff and the part concerning the above 2, 3, 5, and 6 of the corrective order in Paragraph 7 and the part concerning the above 2, 3, 5, and 6 of the corrective order (attached Form 1) of the corrective order in Paragraph 7 and the part exceeding 78,00,000 won of the penalty surcharge payment order is unlawful, and the plaintiff's claim for the remaining part is revoked

[Attachment]

For the purpose of judge Lee e-mail (Presiding Judge)

1) However, in general, home shopping refers to TV home shopping that sells goods to consumers through the medium of broadcasting. The term “ home shopping” refers to TV home shopping.

Note 2) In August 2006, the Plaintiff acquired the shares of the largest shareholder of our Home shopping, and is also called “shot shopping.”

Note 3) While the written resolution is 78,626,00 won, it appears that the amount below the million won is 78,000 won in writing.

4) Since the calculation of a penalty surcharge is the Defendant’s discretionary act, this part of the penalty surcharge order shall be revoked in its entirety.

Note 5) The portion equivalent to the fixed rate out of the fee amount is converted into an absolute amount (=sale amount x fee rate).

Note 6) When applying the actual sales amount, the rate of fixed-rate rates converted to the product with a low sales efficiency is reduced, and the product with low sales efficiency is higher than the rate of fixed-rate rates converted to the product in question. Since the rate of fixed-rate converted to the sales performance of the product in question differs depending on the sales performance of the product in question, the standard sales amount should be applied for an objective comparison. The Plaintiff’s average handling amount per hour based on the actual performance value in 2014 (i.e., KRW 1.3.4 billion (i., annual TV handling amount 978.7 billion ± 7,300 hours per annum). Thus, this shall be considered as the standard sales amount.

Note 7) When using KRW 156 million per hour, which is based on a planned value, not the performance value in 2014, the TV conversion rate is approximately 37.76% on an average.