[1] The purport of Article 36 (1) [Attachment Table] 2 (c) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act provides that "discrimination for affiliated companies" as stipulated in Article 36 (1) [Attachment Table] 2 (c), 2 (a), (b), and (d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act shall be the act of unfair trade unless

[2] The case affirming the judgment of the court below that the Korea National Housing Corporation's advance payment to the companies that it acquired in accordance with the government's policy does not constitute "discrimination in favor of affiliates" under Article 36 (1) [Attachment Table] 2 (c) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act

[3] Requirements to constitute an act of 'disadvantageous offering' under Article 36 (1) [Attachment Table] 6 (d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, and the criteria to determine whether the act constitutes such act

[4] The case holding that the Korea National Housing Corporation's act of reserving payment of some goods until the completion of the comprehensive performance test by the company which entered into a purchase contract, paying a estimated payment for the pre-construction work, and imposing a penalty for failing to comply with the date of the interim process management does not constitute an act of 'disadvantageous disadvantage' under Article 36 (1) [Attachment Table] [Attachment Table] 6 (d) of the former Enforcement Decree

[1] Article 23 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) provides that one of the acts that are likely to impede fair trade (hereinafter referred to as "unfair discrimination against the trading partner") shall be "an act that unfairly discriminates against the trading partner." Article 36 (1) [Attachment Table] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1621 of Mar. 31, 1999) provides that "an act that unfairly discriminates against the trading partner" under Article 23 (1) 1 of the same Act (amended by Act No. 5813 of Feb. 5, 1999) provides that "an act that seriously favorable or unfavorable to the trading partner, such as price, quantity, quality, etc." and "an act that unfairly discriminates against the trading partner" under Article 36 (1) 2 (b) of the same Act shall not be likely to undermine the fair trading partner's burden of proof.

[2] The case affirming the judgment of the court below that the Korea National Housing Corporation's advance payment to the companies that it acquired in accordance with the government's policy does not constitute "discrimination for affiliates" under Article 36 (1) [Attachment Table] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 16221 of March 31, 199)

[3] Article 23 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199) provides that one of the unfair trade practices referred to in subparagraph 4 "an act of unfairly taking advantage of one's trading position and making a transaction with the other party." Article 36 (1) [Attachment Table] subparagraph 6 (d) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 16221 of Mar. 31, 199) provides that "an act of unfairly taking advantage of one's trading position" as one of the unfair trade practices. Article 36 (1) [Attachment Table] of the same Act provides that "an act of unfairly taking advantage of one's ordinary trade practice to disadvantage the other party," and Article 23 (1) Item 6 (d) of the same Act provides that "an act of unfairly taking advantage of its trade practice that causes disadvantage to the other party during the process of offering trade terms or conditions, and it should be determined that the other party's disadvantage can be unfairly affected by the other party.

[4] The case holding that the Korea National Housing Corporation's act of reserving payment of some goods until the completion of the comprehensive performance test by the company which entered into a purchase contract, paying an estimated payment for the pre-construction work, and imposing penalty for failing to comply with the date of the interim process management, etc. does not constitute an act of offering disadvantage under Article 36 (1) [Attachment Table] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 16221 of March 31, 199)

[1] Article 23(1)1 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199); Article 36(1) [Attachment Table] subparagraph 2(c) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Mar. 31, 199); Article 23(1)1 and (2) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813 of Feb. 5, 199); Article 36(1) [Attachment Table] subparagraph 2(c) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 1621 of Mar. 31, 199); Article 36(1) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Act No. 1621 of Feb. 13, 199); Article 36(1) [Attachment Table 36 subparag. 136(d) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 196(19) / [3) of Feb. 196 subparag.

[3] Supreme Court Decision 96Nu18489 delivered on March 27, 1998 (Gong1998Sang, 1216)

Korea National Housing Corporation (Law Firm Barun, Attorneys Jeong-ho et al., Counsel for defendant-appellant)

Fair Trade Commission (Attorney Hwang Sang-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 99Nu1177 delivered on December 15, 1999

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the part on discriminatory treatment for an affiliated company

Article 23 (1) of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 5813, Feb. 5, 199; hereinafter "the former Monopoly Regulation and Fair Trade Act") provides that "an act that unfairly discriminates against the other party to a transaction" under subparagraph 1 as one of the acts that are likely to impede fair trade (hereinafter "unfair trade practices"), and that delegation of authority to set the types of such acts or standards under subparagraph 2 of the same Article, Article 36 (1) [Attachment] of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1621, Mar. 31, 199; hereinafter "Decree") provides that "an act that seriously discriminates against the other party to a trade" under subparagraph 2 (c) of Article 23 (1) of the same Act shall be deemed to be an act that causes unfair discrimination to the other party to a trade without a justifiable reason, and thus, it shall be deemed that there is no possibility of unfair trade practices under subparagraph 2 (c) of the attached Table [Attachment 3] to the Fair Trade Practices.

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning concerning the Plaintiff’s acquisition of the non-party corporation, Hanyang and three other companies (hereinafter “non-party company”) in accordance with the government’s policy, and determined that the Plaintiff’s payment of advance payment to the non-party company constitutes an act falling under the scope of a negotiated contract and financial support order granted to the Plaintiff in order to promote the management normalization of the non-party company, which is the non-party company’s affiliates, the process of executing special cases for the conclusion of several contracts, the conclusion of several contracts, and most of the production materials of the non-party company requires a long period of time due to the investment of funds generated in the process of the purchase and production of raw materials after ordering construction work and the pre-payment of the non-party company, which would cause interference in the management normalization. The court below determined that the Plaintiff’s payment of advance payment to the non-party company acquired as an affiliated company constitutes an act falling under the scope of the non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s economic act.

In light of the records, relevant statutes, and the above legal principles, the judgment of the court below is just, since the plaintiff's act of advance payment to the non-party company constitutes a discrimination for an affiliated company, but the plaintiff has proved that it was not likely to impede fair trade, and thus, it is not unlawful. In this regard, there is no violation of the rules of evidence, or misapprehension of legal principles as to discrimination for the affiliated company or legitimate act in accordance with the laws and regulations, which affected the conclusion of the judgment. The ground of appeal on this point cannot be accepted.

2. As to the part on the act of offering disadvantage

Article 23(1) of the Act provides that one of the unfair trade practices referred to in subparagraph 4 of Article 36(1) [Attachment Table] subparagraph 6(d) of the Decree provides that "an act of unfairly taking advantage of his/her position in trade with the other party to trade" as one of the unfair trade practices, and Article 36(1) [Attachment Table] subparagraph 6(d) of the Decree provides that "an act of unfairly taking advantage of his/her position in trade with the other party to trade" shall be "an act of setting or altering the terms of trade or giving disadvantages to the other party to the other party to the transaction in any manner other than the act falling under subparagraph (a) through (c) of Article 23(1) of the Decree, and that "an act of unfairly taking advantage of his/her position in trade with the other party to trade" shall be "an act of giving disadvantages to the other party to the other party to the other party to the transaction", and it shall be determined that there is a possibility that the other party to the transaction may unfairly disadvantage the other party to the other party in the process of trade practice.

According to the records, when the Plaintiff entered into a contract for the purchase of goods with the supplier of the goods, only 80% of the contract amount shall be paid at the time of supply, inspection and inspection of the supply, and the remaining 20% of the contract amount shall be paid after the completion of the comprehensive performance test to be conducted after the completion of outdoor electrical construction of the building in question. (2) In the case of an urgent construction that makes it impracticable for the contractor to avoid the alteration of a design or the conclusion of a modified contract due to a change in the circumstances after the contract for the construction, the pre-construction portion shall not be deemed as the ingredients until the time of the modification of the design with the approval of the Plaintiff, and the price was paid after the adjustment of the design and contract amount. (3) From the year 196 to the date of the introduction of the "Intermediate Management System" to the other party to the contract for the construction in question, the act of purchasing the pre-construction portion shall not be deemed to have any disadvantage to the other party to the agreement or to have any disadvantage to the other party to the agreement.

Although the reasoning of the court below is somewhat different, the conclusion that the plaintiff's act does not constitute an act of disadvantageous provision is just, and there is no error of law that affected the conclusion of the judgment by failing to exhaust all necessary deliberations or by misapprehending the legal principles or inconsistent reasoning, as otherwise alleged in the ground of appeal. The argument in the ground of appeal on this point

3. As to the non-performance of reasons

According to the reasoning of the judgment of the court below, the court below clearly stated that the plaintiff does not dispute the illegality of the partial corrective order, etc. among the dispositions of this case. However, since the penalty surcharge cannot be divided by violation and thus the whole of the payment order is revoked upon the plaintiff's request, the defendant can calculate the penalty surcharge on the part of the disposition that the plaintiff does not dispute and issue the payment order again, and thus, it cannot be viewed as improper because the defendant did not state this purport in the judgment. The argument in the grounds of appeal on this point

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

Justices Song Jin-hun (Presiding Justice)