[1] The standard for determining whether the latter part of Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act (amended by Act No. 3-2 (1) is likely to seriously undermine the interests of consumers, among the requirements of “an act which is likely to unfairly prejudice the interests of consumers” as a type of the act of abuse of market-dominating position

[2] Criteria for determining "unfairness" among the requirements of "an act which is likely to substantially harm the interests of consumers" under the latter part of Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act as a type of the act of abuse of market-dominating position

[3] Whether the latter part of Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act violates the principle of clarity derived from the principle of the rule of law (negative)

[4] The meaning of "law" under Article 58 of the Monopoly Regulation and Fair Trade Act

[1] The latter part of Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act provides that "an act which may substantially harm the interests of consumers" as a type of an act of abuse of market-dominating position. Whether such act is likely to harm consumers' interests should be determined specifically and individually by comparing terms and conditions of transaction changed due to such act with those of other enterprisers in a similar market, or by comparing them with the degree of change in expenses of the market-dominating enterpriser before and after such act, in order to determine whether such act is likely to harm consumers' interests.

[2] Among the requirements for "an act which may seriously harm the interests of consumers" under the latter part of Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act, the "unfairness" of "an act which is likely to harm the interests of consumers" is not simply intended to protect the interests of consumers, who are parties to the act, directly. However, considering the fact that the purpose of regulating abuse of market-dominating position is to promote competition in the monopoly market and to protect the interests of consumers who can be enjoyed in the competitive market from the act of realizing excessive exclusive profits of market-dominating enterprisers, the intention or purpose of the act of market-dominating enterprisers is deemed to be excessive realization of exclusive profits, and whether the act of market-dominating enterprisers causes or is likely to cause harm to the interests of consumers in the market at issue. However, if there are acts likely to harm the consumer interests of market-dominating enterprisers, and if there are considerable harm to the consumer interests, it is unfair to view that the act of market-dominating enterprisers as an act of taking excessive exclusive profits.

[3] The subject matter of the latter part of Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act is "an abuse detrimental to the consumer interest of a market-dominating enterpriser" and its contents are extremely diverse and frequent change from time to time. The above provision applies to cases where "the existence of an act likely to harm the consumer interest of a market-dominating enterpriser", "a significant degree of harm to the consumer interest" and "the illegality of such an act" are recognized. The determination of the requirements can be embodied through systematic and comprehensive interpretation, such as comparison of various types of abuse of market-dominating positions under Article 3-2 (1) of the Monopoly Regulation and Fair Trade Act with the legislative purpose of the Monopoly Regulation Act and comparison of the abuse of market-dominating positions under Article 3-2 (1) of the above Act. Considering that the above provision is relatively more predictability than the general public, it cannot be viewed that the above provision violates the principle of clarity derived from the rule of law under the Constitution.

[4] Article 58 of the Monopoly Regulation and Fair Trade Act provides that "this Act shall not apply to legitimate acts conducted by an enterpriser or an enterprisers' organization in accordance with other Acts or orders issued under such Acts." The term "law" as referred to in the above provision means an act necessary or minimum to be conducted within the scope of an order issued under other Acts or subordinate statutes, which specifically acknowledges the exception of free competition in a project requiring high level of public regulation from a public point of view, while the enterpriser's exclusive status is guaranteed through a project or authorization system recognized as reasonable to restrict competition due to the unique nature of the pertinent project.

[1] Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act / [2] Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act / [3] Articles 13 and 37 (2) of the Constitution, Article 3-2 (1) 5 of the Monopoly Regulation and Fair Trade Act / [4] Article 58 of the Monopoly Regulation and Fair Trade Act

[1] Supreme Court Decision 2008Du16407 decided Feb. 11, 2010 (Gong2010Sang, 573) / [4] Supreme Court Decision 2003Du9251 decided Aug. 19, 2005 (Gong2005Ha, 1508)

Ebrid River Broadcasting Co., Ltd. and 3 others (Law Firm Han-ro, Attorneys Oh Jeong-hun et al., Counsel for defendant-appellant)

Fair Trade Commission (Law Firm Dcaro temperature, Attorneys Park Ho-ho et al., Counsel for defendant-appellant)

Seoul High Court Decision 2007Nu29842 Decided December 18, 2008

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 4 and 5

The latter part of Article 3-2(1)5 of the Monopoly Regulation and Fair Trade Act (hereinafter “Fair Trade Act”) provides that “any act that may seriously undermine the interests of consumers” as a type of the act of abuse of market-dominating position. As such, the existence of an act that is likely to undermine the consumer interests of market-dominating enterprisers, the apparentness of undermining consumer interests, and the illegality of such an act should be proved. The burden of proof on such requirements is against the Fair Trade Commission that asserts the legality of the disposition, such as a corrective order.

In such a case, whether there is a risk of undermining consumers’ interests should be determined specifically and individually by comparing the transaction conditions of other enterprisers in a similar market with the transaction conditions of the relevant enterpriser, or by comparing the effect of price increase due to the relevant act with the degree of cost fluctuation of the market-dominating enterpriser before and after the relevant act (see Supreme Court Decision 2008Du16407, Feb. 11, 2010).

In addition, the illegality of the act of abuse of position of a market-dominating enterpriser does not merely protect individual consumers' interests, who are parties to the act of abuse of position, but also protect the interests of consumers who can enjoy in the competitive market from the act of promoting competition in the monopoly market and the act of realizing excessive exclusive interests of the market-dominating enterpriser. Considering whether the intent or purpose of the act of the market-dominating enterpriser is an excessive realization of exclusive interests, whether the act of the market-dominating enterpriser's intent or purpose is in excess of the excessive realization of exclusive interests, and whether the act of the act has caused or is likely to cause harm to consumers' interests in the market at the relevant market where the act of the act occurred. However, if there are acts that are likely to undermine the consumer interests of the market-dominating enterpriser, and if there is a significant degree of harm to the consumer interests of the market-dominating enterpriser, there are many cases where the act of the market-dominating enterpriser is unfair.

However, according to the reasoning of the judgment below, the court below determined that: (a) since the Plaintiff and seven business entities including the Plaintiff (hereinafter “Plaintiffs, etc.”) are guaranteed the exclusive right to pay-charging services in a certain area systematically, the freedom of business may be more restricted for public interest purposes, such as protecting consumers’ rights and interests compared to ordinary business entities; (b) there is no evidence that the Plaintiff, etc. did not have any profit in the group contract product of this case; (c) there is no stimulating in consideration of the appropriate price level when determining the discontinuance of the supply of the product of this case (hereinafter “instant act”); (d) profits of the Plaintiff, etc. consisting of advertising profit, facility installation profit, equipment rental profit, and other business profit in addition to the receiving fees; (d) even if the profitability of the product of this case was low, the court below took measures to temporarily abolish the relevant product itself without considering other alternatives, such as increase of fees, and (v) it is recognized that there is an increase in the quantity of individual subscription to the contract of this case between two parties to the contract of this case and one-half.

However, in light of the legal principles as seen earlier, the illegality of the act of undermining consumer interests as stipulated in the provision of this case is subject to the act that is likely to considerably harm consumer interests. Thus, the court below should have first determined whether the act of this case would harm consumer interests by the act of this case, and then determined the illegality of the act of this case. However, the court below did not clearly state the degree of harm to consumer interests by the act of this case. In addition, the court below determined that the act of this case is unfair as abuse of market-dominating position. The reasons why the court below determined that the act of this case was unfair, it is difficult to see that the intent or purpose of the act of the market-dominating enterpriser such as the plaintiff, etc. is excessive realization of exclusive interests. (4) It is merely insufficient to determine that the illegality of the act of undermining consumer interests is not sufficient to prove the degree of proof by the defendant. (5) The increase rate of receiving fees or the degree of suspension of pay viewing cannot be seen as an active basis for the illegality of the act of this case, and therefore, it is difficult to see that the act of this case unfairly impeding consumer interests.

Therefore, this part of the judgment of the court below is erroneous in the misunderstanding of legal principles as to the apparentness and unfairness to the extent of undermining consumer interests caused by the act of this case.

2. As to the grounds of appeal Nos. 1 and 2

The principle of clarity, which is the expression of the principle of the rule of law, is basically required for all fundamental rights restriction legislation. It is because if a criminal cannot know what is prohibited from the meaning of the norm and what is permissible, legal stability and predictability can not be ensured, and it also can be possible for law enforcement agencies to execute arbitrary enforcement. However, even if the legislation on the restriction of fundamental rights is made, the requirement of clarity should be mitigated if it is difficult to provide a single provision in terms of legislative technology because it is of the nature that is extremely diverse or frequent changes in the subject of regulation. Furthermore, whether the provision is clear or not should not be determined by the language of the provision, but by systematically and systematically considering the relevant provisions (see Constitutional Court Order 97Hun-Ba73, Sept. 16, 199).

The subject of the instant provision is “an abuse that undermines the consumer interests of market-dominating enterprisers,” and its contents are extremely diverse and frequent changes, and it is legislative and technically impossible to list them. As seen earlier, the instant provision applies in cases where “the existence of an act that is likely to undermine the consumer interests of market-dominating enterprisers,” “the existence of an act that is likely to undermine the consumer interests,” “an obviousness that is likely to undermine the consumer interests,” and “the illegality of such an act.” The determination of the above requirements can be embodied through systematic and comprehensive interpretation, such as considering the legislative purpose of the Fair Trade Act and comparing the various types of acts of abuse of market-dominating positions under Article 3-2(1) of the Fair Trade Act with the abuse of market-dominating positions. In light of the above, it cannot be deemed that the instant provision violates the principle of clarity derived from the constitutional principles.

In addition, Article 3-2(2) of the Fair Trade Act only provides that the types or standards of abusive acts may be determined by Presidential Decree, and it does not purport that Article 3-2(1) of the Fair Trade Act takes effect only when the relevant Presidential Decree standards exist.

Therefore, the court below is just in deciding whether the provision of this case constitutes an abuse of market-dominating positions under the provision of this case, and there is no error in the misapprehension of legal principles as to the unconstitutionality or validity of the provision of this case, as otherwise alleged in the ground of appeal.

3. Regarding ground of appeal No. 3

This part of the ground of appeal is not only the one asserted in the final appeal, but also in light of facts acknowledged by the court below, it is just that the court below's act of this case belongs to the category of the act detrimental to the consumer interest under the provision of this case. It is not erroneous in the misapprehension of legal principles as to the scope of application of

4. Regarding ground of appeal No. 6

The court below held that the former Broadcasting Act and the Fair Trade Act are not in a special law and general law, considering the fact that the purpose of the Fair Trade Act is to promote fair and free competition by regulating the abuse of market-dominating positions by enterprisers, thereby encouraging creative business activities, protecting consumers, and promoting balanced development of the national economy (Article 1 of the Fair Trade Act), while the former Broadcasting Act (amended by Act No. 8867 of Feb. 29, 2008; hereinafter the same) is to guarantee the freedom and independence of broadcasting and enhance the public responsibility of broadcasting, thereby contributing to protecting the rights and interests of viewers, promoting democratic formation of public opinion, improving national culture, contributing to the development of broadcasting and the promotion of public welfare (Article 1 of the former Broadcasting Act). The judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the legal relation between the former Broadcasting Act and the Fair Trade Act, as otherwise alleged in the ground of appeal.

5. As to ground of appeal No. 7

Article 58 of the Fair Trade Act provides that "this Act shall not apply to lawful acts conducted by an enterpriser or an enterprisers' organization in accordance with any other Act or any order issued under such Act." The law referred to in the above provision guarantees an enterpriser's exclusive status by a business or an authorized system which is deemed reasonable to restrict competition due to the special nature of the pertinent business, while it refers to the necessary and minimum acts conducted within the scope of the order given by the law or its law that specifically recognizes the exception of free competition in a business which requires high level of public regulation from the perspective of public nature (see Supreme Court Decision 2003Du9251, Aug. 19, 2005).

The court below held that Article 77 of the former Broadcasting Act provides that a CATV broadcasting business operator shall determine the terms and conditions of the service fee and other terms and conditions and that the Korea Broadcasting Commission may order changes in the terms and conditions when it considers that the said terms and conditions substantially unfair and detrimental to viewers' interests, but it is only a provision that imposes a CATV broadcasting business operator a duty to report the terms and conditions, and grants the Korea Broadcasting Commission the authority to review them and issue an order to modify the terms and conditions, and does not allow the Korea Broadcasting Commission to individually and directly participate in the determination of the user fee of a CATV broadcasting business operator. Thus, the former Broadcasting Act cannot be deemed as a law that specifically recognizes the exception of free competition, and on the ground that the instant act cannot be seen as an act conducted in accordance with the Korean Broadcasting Commission’s order, it is just to reject the Plaintiffs’ assertion that the instant act constitutes an “justifiable act” under Article 58 of the former Broadcasting Act, and there is no error in the misapprehension of legal principles as to the scope of application under Article 58

6. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)