[1] Whether a “act of inducing customers by fraudulent means” under Article 36(1) [Attachment 1-2] [Attachment 1-2] 4(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act should be established (negative)

[2] The purpose of prohibiting "act of inducing customers by fraudulent means" under Article 36 (1) [Attached Table 1-2] 4 (b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, and the method of determining whether an enterpriser's act constitutes an act of inducing customers by fraudulent means as an unfair trade practice

[3] In a case where the Fair Trade Commission issued a corrective order and a penalty surcharge to Gap corporation, a mobile carrier, by applying Article 23 (1) 3 of the former Monopoly Regulation and Fair Trade Act, on the ground that "the act of Gap corporation constitutes "the act of inducing customers by misleading that Gap corporation will purchase high-priced mobile devices at a discounted price, thereby inducing consumers to subscribe to its own mobile communications services by creating financial resources for extra-contract subsidies to be provided to consumers by withdrawing the supply price or ex-factory price in consultation with three domestic business operators who manufacture mobile phone devices in connection with some models in which Gap corporation participated in the distribution of mobile devices," on the ground that "the act of Gap corporation constitutes "the act of inducing customers by misleading that it actually is more favorable than the actual transaction terms of goods, etc."

[4] In a case where the Fair Trade Commission imposes a penalty on a business entity that engaged in unfair trade practices pursuant to Article 24-2 of the former Monopoly Regulation and Fair Trade Act and Article 61(1) [Attachment 2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, the method of determining the scope of the relevant goods or services, which serves as the basis for calculating the penalty surcharge,

[5] Whether the "other measures necessary for correction" under Article 24 of the former Monopoly Regulation and Fair Trade Act includes all the measures deemed necessary to correct the violation (affirmative) and the limitation of the contents of such measures

[1] In order to establish the act of inducing a customer by fraudulent means, it is sufficient to say that there is a risk of misunderstanding the customer by deceptive means or deceptive inducement, and it does not necessarily mean that misunderstanding has an effect on the choice and decision of the customer's goods or services. The concerns of misunderstanding refer to the possibility or risk of affecting the customer's choice of goods or services.

[2] The purpose of prohibiting the act of inducing customers by fraudulent means is to prevent any infringement on consumers’ rational choice by deceptive or deceptive means, while maintaining fair competition order or trade order through competition among enterprisers in the pertinent industry. Therefore, in determining whether an enterpriser’s act constitutes an act of inducing customers by fraudulent means as an unfair trade practice, it should be comprehensively examined as a whole, such as the impact that an act of inducing customers with ordinary trade experience and caution is likely to impede reasonable choice as to whether ordinary consumers are involved in trade or to ultimately damage trade order in the whole industry or trade order, such as that the act’s act is likely to undermine the fair competition order or trade order of the whole industry, the impact on the impact of the act, the existence and degree of ripple effect, the number or size of enterprisers adopted by the business strategy, whether the act in question is likely to imitate, the scale of trade related to the act, the form of trade, the specific form of trade used by the enterpriser, the intent of the enterpriser to use the competitive means in question, whether such means exceed permissible limits in light of the ordinary trade practice and good faith, and

[3] The case holding that Gap company's act of offering out-of-contract subsidies to Gap company, which was released in 208-2010 and was actually involved in the distribution of mobile devices, constitutes a violation of Article 23 (1) 3 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013), and Article 36 (1) [Attachment 1-2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014) provides that Gap company's act of offering out-of-contract subsidies through consultation with three domestic business operators manufacturing mobile devices, and inducing customers to buy high-priced mobile devices at discount, thereby inducing them to subscribe to its own mobile devices, the act of offering them at discount, which is more favorable to Gap company's prior purchase order, constitutes a violation of Article 36 (1) [Attachment 4-3] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended Act).

[4] According to Article 24-2 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013) and Article 61(1) [Attachment 2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014), the Fair Trade Commission may impose a penalty surcharge calculated based on sales of related goods or services sold in a particular business area during the period of violation on an enterpriser who engaged in unfair trade practice. The scope of related goods or services, which is the premise for calculating sales, should be determined individually and specifically by taking into account the content of the violation, the kind and nature of the goods or services affected directly or indirectly by the violation, the purpose and possibility of substitution, the transaction area, transaction counterpart, transaction stage, etc.

[5] Article 24 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013) provides that “In the event of an act in violation of Article 23(1), the Fair Trade Commission may order the pertinent enterpriser to suspend unfair trade practices, to delete the contract provisions, to publish the fact that the relevant person is ordered to take corrective measures, and to take other necessary corrective measures.” In light of the language of the provision and the purport of the corrective order system and the need to ensure its effectiveness, “other necessary corrective measures” under the above provision include all the measures deemed necessary to correct the violation, as well as to discontinue the act of violation. Accordingly, the Fair Trade Commission may order a corrective measure only when necessary to correct the violation. Accordingly, the content of the measure is limited to the scope necessary to restore or maintain the fair competition order that has been impeded by the act of violation, and the measure should not be proportional to the contents and degree of the measure in question.

[1] Article 23(1)3 and (2) (see current Article 23(3)) of the former Monopoly Regulation and Fair Trade Act (Amended by Act No. 12095, Aug. 13, 2013); Article 36(1) [Attachment 1-2] subparagraph 4(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Presidential Decree No. 25173, Feb. 11, 2014); Article 23(1)3 and (2) (see current Article 23(3) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Act No. 12095, Aug. 13, 2013); Article 36(1) [Attachment 1-2] subparagraph 4(b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (Amended by Act No. 25135, Feb. 11, 2014; Presidential Decree No. 2501, Mar. 1, 2017

[1] Supreme Court Decision 2001Du4306 Decided December 26, 2002 (Gong2003Sang, 521) / [4] Supreme Court Decision 2013Du17435 Decided June 19, 2017

KS Telecom Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Choi Byung-hee et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Nu22999 decided October 29, 2014

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Case summary and key issue

A. Case summary

According to the reasoning of the judgment below, the following facts are revealed.

(1) Market status

Samsung Electronic Co., Ltd. (hereinafter referred to as “stock company” in the name of each company), ELB, and panch (hereinafter referred to as “three manufacturers”) are domestic business operators who manufacture mobile phone devices (hereinafter referred to as “phones”). At the time of 2010, the three manufacturers’ market share at approximately KRW 85% in total, and in the domestic mobile communications service market, the Plaintiff, KT, and ELS (hereinafter referred to as “three mobile communications companies”).

(2) Terminal distribution structure

(A) approximately 85% of the devices distributed in Korea were supplied to agents, sales stores, etc. (hereinafter referred to as “distribution network”) through mobile operators (hereinafter referred to as “business model”). In the case of a device directly supplied from a manufacturer to a distribution network without going through a mobile operator, only the mobile operator registered the device information but the mobile operator was able to open the device. Accordingly, the structure of the mobile operator’s central distribution of the device was formed.

(B) In the essential complementary relationship between a device and a mobile communications service, the consumer generally purchased a device from the distribution network and entered into a mobile communications service contract together with the mobile communications service contract. The promotional method for a mobile operator to pay a mobile subsidy on the condition of subscription to the mobile communications service was also activated while leading the distribution of a device.

(3) Mobile price structure

(A) Generally, the price at which a manufacturer sells a device to a mobile operator is called “supply price”, and the price at which a mobile operator sells a device to an agency is called “ex-factory price”. The ex-factory price of a device is known to consumers through the press, etc.

(B) In order to promote the sale of a mobile device, a manufacturer or mobile carrier shall pay a variety of incentives, such as manufacturer incentives, mobile operator incentives, and joint sales promotion incentives for manufacturers and mobile carriers, to an agency. An agency establishes its profit width in consideration of the size of the incentives and determines the retail price of the mobile device. In this case, the scope of the agency’s discount of the price of the mobile device is “non-contract subsidy.” Meanwhile, the mobile carrier directly provides the consumers who have joined the mobile communications service for marketing of the mobile service with the benefit of the discount of the mobile device or the mobile communications fee. Among them, the amount of discount on the mobile device varies by the type of mobile device, the period of agreement, and the rate of use. It is called “agreement subsidy” for the mobile device.

(C) The majority of consumers, excluding consumers who purchase a device without purchasing only a device or without purchasing a specific mobile communications service suitable for a policy for the payment of incentives of a mobile operator, can purchase a device at a price lower than the original ex-factory price by receiving deduction equivalent to the subsidy from out-of-contract or the subsidy from an agreement.

(4) The instant disposition

On July 10, 2012, the Defendant: (a) induceds the Plaintiff to subscribe to its mobile communications services on the ground that “the Plaintiff, with respect to a part model model model that was launched from 2008 to 2010 and participated in distribution, raising the financial resources for out-of-contract subsidies that the Plaintiff would pay to consumers by withdrawing the supply price or ex-factory price in consultation with the third manufacturers; and (b) by paying it to consumers through an agency, etc., inducing consumers to misunderstand the purchase at a discounted price of high-priced device, thereby inducing them to subscribe to its own mobile communications services; (c) Article 23(1)3 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 12095, Aug. 13, 2013; hereinafter “Fair Trade Act”); (d) Article 23(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 25173, Feb. 11, 2014; hereinafter “Enforcement Decree of the Fair Trade Act”).

B. Key issue of the instant case

The key issue of this case is whether the plaintiff's act constitutes an inducement of customers by fraudulent means, whether the calculation of the sales amount related to the penalty surcharge payment order was erroneous, and whether the disclosure order and the reporting order are illegal during the corrective order.

2. Whether it constitutes an act of inducing customers by fraudulent means (the Plaintiff’s grounds of appeal Nos. 1 through 3)

A. Relevant legal principles

Article 23(1)3 of the Fair Trade Act provides that “the act of inducing or inducing customers of competitors to deal with oneself” as one of the unfair trade practices, and Article 23(2) provides that “the act of inducing or inducing customers of competitors to deal with oneself shall be prescribed by the Presidential Decree.” Article 36(1) [Attachment 1-2] 4(b) of the Enforcement Decree of the Fair Trade Act provides that “in accordance with delegation, inducing customers by fraudulent means” shall be prescribed as one of the types of unfair trade practices, and the act shall be construed as “the act of inducing customers to deal with oneself by means of fraudulent means, other than unfair labeling or advertising under subparagraph 9,” and the contents of the act shall be construed as “the act of inducing customers to mislead or mislead customers as being significantly superior to or more favorable to the actual condition of the goods or services supplied by the competitor, or as being significantly poor or more unfavorable to them.” Meanwhile, in order to establish the act of inducing customers by deceptive means, it is sufficient that customers might be misunderstood by deceptive means or deceptive means.

The purpose of prohibiting the act of inducing customers through fraudulent means is to prevent any infringement on consumers’ rational choice by deceptive means or deceptive means, while maintaining fair competition order or trade order through competition on prices, etc. among enterprisers in the relevant industry. Therefore, in determining whether an enterpriser’s act constitutes an act of inducing customers by deceptive means as an unfair trade practice, it is necessary to comprehensively examine comprehensively the impact that an act may be affected by fair competition order or trade order of the entire industry, such as where a reasonable choice of ordinary consumers with experience and caution is impeded or it is likely that many consumers may ultimately damage the whole industry, such as that such act would impede reasonable choice, or cause damage to the general consumers, etc.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) Determination of the supply price and ex-factory price of the business model

(A) In the case of a non-contractual model:

On March 2008, the Plaintiff’s abolition of the provision of subsidies, etc., which led to the need to provide more and more subsidies than the competition in attracting subscribers, the Plaintiff demanded three manufacturers to pay more contributions. The three manufacturers need to provide subsidies to be allocated at the Plaintiff’s request, as well as the cost of the ex-factory was immediately reflected in the device’s upper condition, and the three manufacturers wanted to determine the ex-factory price at a level similar to the device of other manufacturers. The three manufacturers presented a proposal to the Plaintiff and requested the Plaintiff to determine the ex-factory price accordingly. In addition, the three manufacturers determined the size of the ex-factory price to be used for non-contract subsidies, etc. after consultation with the Plaintiff (hereinafter “Net”) and then decided the ex-factory price (hereinafter “pre-factory incentive price” to be reflected in the price in the process of determining the ex-factory price or ex-factory price of the device). Accordingly, the three manufacturers agreed on the supply price agreement at the same time means the cost of the ex-factory price.

(B) In the case of a contract model:

The contract model is a device that the mobile carrier promises to purchase a certain quantity from the time of the delivery of the device to secure a strategic device separate from other mobile operators, and is supplied at the net market instead of mass purchase. Unlike the existing practice that has determined the ex-factory price at a level added to the distribution cost, in the case of a contract model, the Plaintiff determined the ex-factory price at a level that reflects the amount to be used as the advance incentives in consultation with the third company in consultation with the supply price, and the third company actively participated in the decision on the ex-factory price by presenting a high level of ex-factory price in relation to the ex-factory price determined by the Plaintiff.

(2) Execution of advance incentives

In consultation with the three manufacturers, the Plaintiff paid the advance incentives to the distribution network on the premise that most of the advance incentives reflected in the supply price or ex-factory price will be used as out-of-contract subsidies. Moreover, the Plaintiff participated in the implementation of the advance incentives by frequently distributing to the agency a policy list arranging the criteria for the payment of the advance incentives, etc. in consideration of the consumer prices of each terminal model that the Plaintiff consulted with the three manufacturers, or conducting training on the agency employees through the marketing team.

The distribution network led consumers to purchase a device and purchase a mobile communications service by promoting activities by providing that "the ex-factory price of a device is high, if the mobile communications service use agreement is made, the store shall discount the number of times, and if the period of use exceeds a certain period of time, the actual purchase price of the device shall be that of the actual purchase price of the device."

C. Determination

(1) Examining these facts in light of the legal principles as seen earlier, the Plaintiff’s act constitutes “the act of inducing customers by misunderstanding that the terms and conditions of transaction of goods, etc. are more favorable than actual ones.” The reasons are as follows.

(A) In consultation with the Plaintiff and three manufacturers, after raising the ex-factory price by reflecting the advance incentives in the supply price or ex-factory price of the device, the Plaintiff and the three manufacturers paid the advance incentives to the distribution network, and subsequently, made the consumers receive the out-of-contract subsidies funded by the advance incentives on the condition of subscription to the mobile communications service through the distribution network (hereinafter “instant violation”).

(B) The reason why the Plaintiff and the three manufacturers committed the instant violation is because, as such, there was a need to manage the ex-factory price recognized as an indicator indicating the upper part of the device at a level similar to the competitor’s ex-factory price. Moreover, the Plaintiff and the three manufacturers made it erroneous for consumers to believe that the high price of the device was set by reflecting the advance incentives, but the Defendant paid the out-of-contract subsidy on the condition of subscription to the mobile communications service and lower the actual purchase price, thereby lowering the actual purchase price.

(C) The price is one of the most important factors that the buyer considers in determining whether to purchase the goods or services, and is the most basic means of competition in the market economy. Competition between competitors is likely to benefit both the other party to the transaction and the general consumers, so free price competition in the market should be protected in principle. In addition, there is a need for a business entity to pay a bounty to the distribution network in order to compete with the same business entity and promote the sale of the goods or services. Since the creation and enforcement of such incentives are similar to the reduction of the price, it is not always easy to distinguish from the normal price discount, and in itself, it is not evaluated as a means of soliciting customers by deceptive means.

However, prior incentives at issue in this case are different from normal incentives, such as forming a appearance that reduces retail prices, on the premise that the Plaintiff and three manufacturers agreed to reflect them in the supply price or ex-factory price, and that they will not be attributed to them from the beginning, and that considerable portion of the prior incentives, other than some profits the distribution network takes from the time of the release of goods, should be paid to consumers as out-of-contract subsidies.

In addition, the Plaintiff and the three manufacturers determined the supply price and the ex-factory price by reflecting the advance incentives from the stage of the departure of a device, and agreed on the scale of the advance incentives in line with the appropriate consumer price. This is a circumstance that the ex-factory price is merely a nominal price not scheduled for actual sales price in the case of a device that reflects the price of the advance incentives. Meanwhile, the Plaintiff and the three manufacturers agreed on the advance incentives and the supply price based on the net price, which deducts the advance incentives borne by the three manufacturers from the supply price, even in the case of a non-contract model, and even in the case of a device that reflects the price of the advance incentives, the third manufacturers calculated the profit and loss rate based on the net price. This supports the fact that the net price in the process of negotiations between the Plaintiff and the three manufacturers was the same as the actual supply price.

(D) In general, consumers recognize that the performance and quality of a device is excellent, while not fully understand the complex price structure or system of a device or a mobile communications service, purchase a device and subscribe to the mobile communications service by dependent on the information provided by the Plaintiff, the mobile operator, or the explanation of the distribution network. However, the Plaintiff and the three manufacturers have reflected the advance incentives that have no financial relationship with the mobile communications service agreement or the price of the device itself, and have used them as the source of the out-of-contract subsidy, and have paid out out the out-of-contract subsidy through the distribution network only when consumers subscribe to the mobile communications service. In addition, the distribution network has promoted the purchase of the device in the form of a certain amount after deducting the subsidy from the ex-factory price only for the consumers.

Ultimately, due to the instant violation, the consumer purchased a device with a high ex-factory price at a discounted price, regardless of the absence of substantial discount benefits, and such discount was made due to the purchase of a specific mobile communication service, and the source of discount was not already included in the ex-factory price of the device itself, but is likely to mislead the Plaintiff that it was a part of the profit that the Plaintiff obtained by joining the mobile communication service.

(E) Unlike general electronic equipment, in the case of a mobile device distribution market, there was a practice of granting subsidies on the condition that the mobile device and the mobile device are combined and sold, and the mobile device and the mobile device are traded. In such a situation, the instant violation committed by three mobile operators and three manufacturers, which led to marketing effects by setting the ex-factory price high by reflecting the incentives from the phase of the release, and then granting subsidies funded with the incentives, thereby discounting the device. The instant violation is an act of misleading consumers to hamper the reasonable choice of consumers and impeding the promotion of competition in the normal cost of the shipment of the mobile device and the mobile communications fee.

Even if there is a “necessary” to resolve the conflict of interest between a manufacturer on the increase in sales and a mobile carrier’s interest in a situation in which the interests of the manufacturer and the mobile carrier in the increase in sales are consistent with a certain part of the mobile carrier’s request for the reduction of the price of the mobile carrier’s mobile device, and such a method has been used, the instant violation is not justified due to such “necessary”.

(2) In the same purport, the lower court determined that the Plaintiff’s instant violation constituted “an act of inducing customers by misunderstanding that it is more favorable than the actual transaction terms of goods, etc.”

Furthermore, the lower court determined that there was no illegality of deviation from or abuse of discretion on the part of the Defendant’s measures, since the Defendant calculated “average ratio of ex post facto incentives to the Plaintiff at the ex-factory price” as much favorable to the Plaintiff, based on which “the average ratio of ex-factory price to the Plaintiff” was set as possible, and specified the device subject to the instant violation and excluded the remainder from the subject of the disposition.

In addition, the lower court determined that the instant violation constituted an act of misleading or misleading a customer (consumer) on the terms and conditions of transaction for the Plaintiff’s device, etc., on a comprehensive basis of the following factors: (a) the scope of the ex-factory price in the case of a device that became the object of the instant violation among the business models in which the Plaintiff was involved in distribution; (b) the ratio of the ex-factory price to the ex-factory price; (c) the total amount of subsidies to prepare for the ex-factory price; (d) the ratio of the ex-factory price; and (e) the ratio of the ex-factory price to the total amount of subsidies; and (e) the degree of impact of the instant violation on the overall transaction of the device

(3) Such judgment of the court below is based on the legal principles as seen earlier, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles regarding “act of inducing customers by deceptive means” and “the requirements for integrity,” or by exceeding the bounds of the principle of free evaluation

3. Whether the calculation of the relevant sales amount is illegal (Plaintiff’s ground of appeal No. 4)

A. According to Article 24-2 of the Fair Trade Act and Article 61(1) [Attachment 2] of the Enforcement Decree of the Fair Trade Act, the Fair Trade Commission may impose upon an enterpriser engaged in unfair trade practices penalty surcharges calculated on the basis of sales of relevant goods or services sold in a particular business area during the period of violation. The scope of relevant goods or services, which is the premise for calculating sales, ought to be determined individually and specifically by taking into account the content of the violation, the kinds and nature of the goods or services that are directly or indirectly affected by the violation, the type and use of the goods or services, the possibility of substitution due to the violation, and the transaction area, transaction counterpart, transaction stage, etc. (see Supreme Court Decision 2013Du17

B. The lower court determined that there was no error of deviation or abuse of discretion in calculating the relevant sales revenue of the Defendant on the following grounds.

(1) The Defendant, based on the average ratio of ex post facto incentives to the ex-factory price, deemed that the user’s mobile communications service fee was the sales amount of the goods or services directly or indirectly affected by the instant violation. The Defendant’s measures do not seem to be arbitrary or reasonable.

(2) The discretion to determine the amount of the out-of-contract subsidy is limited to the exercise of the discretion to determine the distribution network’s amount of the out-of-contract subsidy. In fact, considerable portion of the advance subsidy seems to have been paid out of the agreed out-of-contract subsidy in line with the intent of the Plaintiff and the three manufacturers. In light of such circumstances, the Defendant cannot be deemed to have waived or abused discretion in the measures calculated the relevant sales on the premise that the measure that the amount of the out-of-contract subsidy actually paid to consumers by the distribution network was paid out of the agreed-of-contract subsidy without confirming the amount of the out-contract

C. Such judgment below is based on the legal principles as seen earlier, and it did not err by misapprehending the legal principles on relevant sales, contrary to what is alleged in the grounds of appeal.

4. Whether disclosure order and reporting order are illegal (Defendant's ground of appeal)

A. Article 24 of the Fair Trade Act provides that “The Fair Trade Commission may order the relevant business entity to suspend unfair trade practices, to delete the terms and conditions of the relevant contract, to publish the fact that it has received a corrective order, and to take other necessary corrective measures.” In light of the language and text of such provision, the purport of the corrective order system, and the need to ensure its effectiveness, “other necessary corrective measures” under the said provision includes all the measures deemed necessary to correct the violation. Therefore, the Fair Trade Commission may take such measures as are deemed necessary to correct the violation, taking into account the specific form of the violation, structure and characteristics of the relevant market, etc. Therefore, the Fair Trade Commission may order the correction of the violation only when necessary to correct the violation. As such, the contents are limited to the extent necessary to restore or maintain the fair competition order harmed by the violation, and measures not recognized as having substantial relations with the violation, and further should be proportional to the contents and degree of the violation.

B. On the grounds delineated below, the lower court determined that the instant disclosure order and reporting order violated the principle of proportionality.

(1) The Defendant ordered the Plaintiff to disclose the details of the difference between the ex-factory price and the supply price of all devices sold by the Plaintiff on the Plaintiff’s website, and to report to the Defendant the supply price, ex-factory price, the change in the supply price, and the change in the ex-factory price.

(2) The Defendant deemed that the Plaintiff’s act of reflecting considerable amount of the advance incentives in advance on the price or ex-factory price of the device was unlawful in order to raise the source of the out-of-contract subsidy to be paid to consumers who subscribed to the future mobile communications service under the “consultation” with the three manufacturers, and does not deem that the creation and payment of all grants was unlawful.

(3) Without considering whether there was an agreement on ex-factory price between the Plaintiff and the manufacturer, all devices are subject to disclosure order and reporting order, and all devices are not related to the instant violating act are not proportional to the content and degree of the act of violation.

(4) Furthermore, in the case of a non-contractual model, even if an order is issued to disclose the difference between the supply price and the shipment price or to report the supply price and the ex-factory price, it is difficult to find out whether the supply was unfasible.

C. Such judgment below is based on the legal principles as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the suitability of means, the principle of no exception, etc. as to whether disclosure orders and reporting orders deviate from or abused discretionary power.

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)