logobeta
본 영문본은 리걸엔진의 AI 번역 엔진으로 번역되었습니다. 수정이 필요한 부분이 있는 경우 피드백 부탁드립니다.
텍스트 조절
arrow
arrow
(영문) 대법원 2008. 2. 14. 선고 2005두1879 판결
[시정명령처분취소청구][집56(1)특,283;공2008상,392]
Main Issues

[1] The meaning and requirements of an enterprisers' organization under Article 2 subparagraph 4 of the former Monopoly Regulation and Fair Trade Act

[2] The nature of Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act and the type or standard of unfair trade practices under Article 23 (1) 8 of the same Act, which are not prescribed by the Enforcement Decree of the same Act, can be punished by applying the pertinent act to "an act which is likely to impede fair trade" under subparagraph 8 of the same Article (negative)

Summary of Judgment

[1] Article 2 subparag. 4 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) provides that an enterprisers' organization refers to a combination or federation organized by two or more enterprisers for the purpose of increasing their common interests, regardless of its form. Here, the term "joint interest" refers to the interests in economic activities of the member enterprisers. It does not fall under the economic activities of the member enterprisers. Further, since an individual member participating in the enterprisers' organization is an independent business operator, it shall not be deemed an enterprisers' organization if the individual business operator does not perform its own activities as a result of absorbing it into an independent business operator. In order to become an enterprisers' organization, it shall have the organizational nature and structure distinct from the individual member enterprisers' organization.

[2] Even if Article 23(1)8 of the Monopoly Regulation and Fair Trade Act provides for all of the unfair trade practices that may arise in complex and diverse economic activities or market situations with a view to regulating the acts similar to those under subparagraphs 1 through 7 in the context of legislative technology difficulties, unlike those under subparagraphs 1 through 7, the above subparagraph 8 does not provide for the basic types of acts or the criteria for measuring them at all, so it is difficult to predict whether certain acts conducted in the course of ordinary trade activities constitute “an act which is likely to impede fair trade” under subparagraph 8, and thus, it is difficult to predict whether it is prohibited. Furthermore, considering that Article 23(1) of the Monopoly Regulation and Fair Trade Act provides not only administrative sanctions against an enterpriser who has committed unfair trade practices in violation of Article 23(1) of the same Act, but also criminal punishment, the above subparagraph 8 of the Enforcement Decree does not require to regulate such acts as unfair trade practices under subparagraphs 1 through 7 of the same Article, so long as there is no concern for regulating such acts as unfair trade practices.

[Reference Provisions]

[1] Article 2 subparagraph 4 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315 of Dec. 31, 2004) / [2] Article 23 (1) 8 of the Monopoly Regulation and Fair Trade Act

Plaintiff-Appellant

Plaintiff 1 and 13 others (Attorney Choi Young-young et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

Fair Trade Commission (Attorney Lee In-bok, Counsel for defendant-appellant)

Judgment of the lower court

Seoul High Court Decision 2003Nu12693 delivered on October 21, 2004

Text

The part of the judgment below against the plaintiff 1 is reversed, and that part of the case is remanded to the Seoul High Court. All remaining appeals by the plaintiffs except the plaintiff 1 corporation are dismissed. The costs of appeal between the plaintiffs except the plaintiff 1 corporation and the defendant are assessed against the above plaintiffs.

Reasons

The grounds of appeal are examined.

1. As to the remaining plaintiffs' grounds of appeal except the plaintiff 1 corporation

A. Plaintiff 12

According to the reasoning of the judgment below, the court below rejected the lawsuit of this case by Plaintiff 12 on the ground that there is no proof of the attorney-at-law's right to represent the lawsuit of this case as the attorney-at-law of this case. According to the records, the above measures of the court below are justified and there is no error in the misapprehension of legal principles as to delegation contracts and ratification of acts of unauthorized representation concerning the right to represent the

B. The part of the plaintiff 2 and others

(1) Article 2 Subparag. 4 of the former Monopoly Regulation and Fair Trade Act (amended by Act No. 7315, Dec. 31, 2004; hereinafter “Fair Trade Act”) provides that an enterprisers’ organization is a body or a federation thereof, regardless of its form, which is organized by two or more enterprisers for the purpose of increasing their common interests. The term “joint interest” here refers to the interests in the economic activities of the member enterprisers. It does not constitute an organization that is solely aimed at friendship, religion, science, research, research, and social activities. In addition, since an individual member participating in an enterprisers’ organization is an independent business operator, it shall not be deemed an enterprisers’ organization if an individual business operator does not perform its own activities because it is absorbed into that organization, it shall not be deemed an enterprisers’ organization, and in order to become an enterprisers’ organization, it shall have the organizational nature and structure distinct from the individual member enterprisers.

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found facts as stated in its reasoning. The court below determined that: (a) the remaining plaintiffs except the plaintiff 1 corporation and the plaintiff 12 (excluding the plaintiff 1 corporation and the plaintiff 2; (b) the plaintiff 2 et al. refers to the plaintiff 12; and (c) the plaintiff 2 et al. refers to the plaintiff 12; and (d) the real estate broker's association was established with a real estate broker's friendship and real estate trade order among its members; and (c) the real estate broker's association was established between the plaintiff 2 et al. for the purpose of establishing the real estate broker's friendship and promoting the common interests of the real estate broker's members; and (d) the real estate broker's association was established with its own name as the representative from February 198 to 199; and (e) the plaintiff 2 et al.'s association's own ethics and ethics regulations were enforced before enforcing them.

In light of the above legal principles and records, the court below did not err by violating the rules of evidence as to the organization and activities of plaintiffs 2, etc. and by misapprehending the legal principles as to the trade association.

(2) On the other hand, the court below decided that Plaintiff 1 corporation's act of establishing a non-party 2's business rights and promoting the welfare through a regular meeting and occasional meeting on July 2000 with respect to the non-party 1's business activities, including the contents that restrict the business activities or activities of non-member cooperatives through the non-party 2's meeting during the period from March 2001 to April 200, the court below decided that the non-party 2 corporation's act of establishing an ethics regulation for establishing order in real estate transactions, including the contents that restrict the business activities or activities of the non-member cooperatives such as prohibition of trading with the non-party 1's non-member cooperatives, prohibition of Sundays business, restriction on advertisement, etc. The above ethics regulation was distributed to each member of the non-party 1 corporation, and that the non-party 2 corporation's act of installing an information network for preventing the plaintiff 1's real estate transactions in violation of the Fair Trade Act's business activities, which is the non-party 2 company's non-party 2's trading information network.

In light of the records, the above fact-finding and judgment by the court below is not deemed to have violated the rules of evidence as alleged in the grounds of appeal, and the ground of appeal by the plaintiff 2 et al. is merely an error in the selection of evidence and fact-finding which belong to the exclusive authority of the fact-finding court, and it

2. As to the ground of appeal by Plaintiff 1

Article 23(1) of the Fair Trade Act provides that "an enterpriser shall not engage in any act which falls under any of the following subparagraphs and which is likely to impede fair trade (hereinafter referred to as "unfair trade practices"), or an affiliated company or other enterprisers shall not engage in such act." Article 23(1) of the Fair Trade Act provides for the types of unfair trade practices in subparagraphs 1 through 7 and subparagraph 8 thereof "an act which is likely to impede fair trade as an act other than those in subparagraphs 1 through 7," and Article 23(2) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 2016, Jul. 13, 2007; hereinafter the same shall apply) provides that "the types or criteria of unfair trade practices shall be prescribed as one of the unfair trade practices." Article 36(1) of the former Enforcement Decree of the Fair Trade Act (amended by Presidential Decree No. 2016, Jul. 13, 2007) provides for specific types of or criteria for unfair trade practices.

However, in a situation where it is difficult to stipulate all of the unfair trade practices that may arise in complicated and diverse economic activities or market situations under Article 23(1)8 of the Fair Trade Act with the aim of regulating acts similar to those under subparagraphs 1 through 7 in terms of fair trade under the circumstances where legislative technology is difficult, unlike subparagraphs 1 through 7, the above subparagraph 8 does not stipulate the basic types of acts or the standard comparison for measuring them at all, and it is difficult to predict whether certain acts performed in the course of the ordinary trade activities from the standpoint of the principal offender constitute “an act which is likely to impede fair trade” as provided under Article 23(1)8 of the Fair Trade Act. Furthermore, considering that Article 23(1)8 of the Fair Trade Act does not include administrative sanctions against the business entity who committed unfair trade practices in violation of Article 23(1) of the Fair Trade Act and Article 23(1)8 of the Enforcement Decree of the Fair Trade Act, it is reasonable to stipulate that the Fair Trade Act does not regulate the unfair trade practices under Article 23(1)8)1 through 7 of the Fair Trade Act.

However, the defendant applied to the plaintiff 1's act of publicity in this case to unfair trade practices under Article 23 (1) 8 of the Fair Trade Act, and thus ordered correction against the plaintiff 1 corporation. Accordingly, the court below decided that the defendant's disposition of this case against the plaintiff 1 corporation was legitimate on the premise that the plaintiff 1 corporation's act of publicity in this case can be applied to unfair trade practices under Article 23 (1) 8 of the Fair Trade Act without any provision on the type of or standard for unfair trade practices related to Article 23 (1) 8 of the Fair Trade Act, under the premise that the public relations act of this case by the plaintiff 1 corporation can be applied to unfair trade practices under Article 23 (1) 8 of the Fair Trade Act. However, in light of the above legal principles, the court below erred by misapprehending the legal principles related to interpretation and application of the above provision, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by Plaintiff 1, the part of the judgment of the court below against Plaintiff 1 corporation is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals by all the plaintiffs except Plaintiff 1 corporation are dismissed. It is so decided as per Disposition by the assent of

Justices Kim Young-ran (Presiding Justice)

arrow
기타문서