(a) Requirements for “unfair trade practices due to abuse of status” under Article 23(1)4 of the Monopoly Regulation and Fair Trade Act, Article 6 subparag. 4 of the Types of and Criteria for Unfair Trade Practices (Notice of the Fair Trade Commission No. 90-7);

(b) The case holding that the act of refusing to pay the price corresponding to the liquidated damages for delay does not constitute the unfair trade practices due to the abuse of position in the subway Corporation;

A. Unfair trade practices due to abuse of superior position under Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act and Article 6 (1) 4 of the Fair Trade Act (Notice No. 90-7 of the Fair Trade Commission) should be likely to impede fair trade by establishing or altering terms and conditions of trade to be unfairly disadvantageous to the other party in light of normal trade practices by taking advantage of the fact that the enterpriser's position in trade between the enterprisers is biased.

(b) The case holding that the act of refusing to pay the price corresponding to the liquidated damages for delay does not constitute the unfair trade practices due to the abuse of position in the subway Corporation;

Article 23 (1) 4 of the Monopoly Regulation and Fair Trade Act, Article 6 subparagraph 4 of the Fair Trade Act (Notice of the Fair Trade Commission No. 90-7)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant-appellant-appellee)

Attorney Lee Byung-hoon, Counsel for the defendant-appellant of the subway Corporation

Attorney Han-soo et al., Counsel for the plaintiff-appellant

Seoul High Court Decision 92Gu19301 delivered on January 20, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to the facts established by the court below, when the plaintiff entered into a two purchase contract with the Hanjin Heavy Industries Co., Ltd. on January 29, 1990, the contract amount of KRW 1,400,979,110 shall be delivered to the original vehicle base by January 31, 191, and the delivery period of KRW 0.1% of the total contract amount shall be deducted as compensation for delay at every one day after the payment period. The non-party company delivered the two preceding vehicles to the defendant on February 9, 1991, which exceeded the contract payment period, and the non-party company received the final decision of passing the correction order on the 19th day of the same month, such as supplementation of the above previous vehicles, and the non-party company rejected the above correction order on the 19th day after the 19th day of the same month, and the non-party company rejected the above correction order on the 19th day after the 19th day of the same month.

However, unfair trade practices due to abuse of superior position under Article 23(1)4 and Article 6 subparag. 4 of the Act are ① trade between enterprisers, ② an enterpriser takes advantage of his superior position in trade among them, ③ an act of establishing or altering terms and conditions of trade to disadvantage the other party in light of normal trade practices, ④ an act of causing disadvantage to the other party, and ⑤ an act of impeding fair trade. In light of the records, first, considering the size of the non-party company, the exclusive consumers cannot be deemed to be limited within the country, and the Plaintiff cannot be deemed to have been in an exclusive consumer position. In conclusion of the above contract, there is no evidence to support that the Plaintiff unfairly restricted the free will of the non-party company. Second, the agreement between the non-party company and the supplier of the goods or the contractor to prepare for the non-party company's failure to perform its obligation during the due date of the contract is considered to be unfair trade practice after the conclusion of the contract, and thus, the agreement between the Plaintiff and the non-party company for delay compensation for delay cannot be seen to be considered to be unfair.

Ultimately, although the court below's interpretation on the requirements for unfair trade practices due to abuse of superior position is somewhat insufficient, it is legitimate in its conclusion to accept the plaintiff's claim of this case seeking revocation of the corrective order because the refusal of payment by the plaintiff does not constitute unfair trade under Article 23 (1) 4 of the Act and Article 6 subparagraph 4 of the Public Notice. Therefore, it is not erroneous in the misapprehension of legal principles that affect the conclusion of the judgment.

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

Justices Kim Yong-sung (Presiding Justice)