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TITLE Supreme Court Decision 2014Du15047 Decided September 26, 2019 【Revocation of Corrective Order and Penalty Surcharge Payment Order】 [full Text]
Summary
[1] Whether the “act of enticing customers by fraudulent means,” stipulated as one of the unfair trade practices stipulated in Article 36(1) Addenda 1-2 Subparag. 4 Item (b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, requires the occurrence of a result of misunderstanding for its establishment (negative)
Meaning of “misunderstanding” and “concerns about misunderstanding”
[2] Intention of prohibiting the “act of enticing customers by fraudulent means,” which is stipulated as one of the unfair trade practices under Article 36(1) Addenda 1-2 Subparag. 4 Item (b) of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, and method of determining whether a business entity’s act constitutes an unfair trade practice and the act of enticing customers by fraudulent means
[3] In the case where the Fair Trade Commission issued a correction order and a penalty surcharge payment order to Company A, a mobile carrier, by applying Article 23(1)3 of the former Monopoly Regulation and Fair Trade Act on the following grounds: (a) in relation to mobile phone devices of a certain model that were launched between 2008 and 2010, in whose distribution Company A played a part, Company A agreed with the three domestic mobile phone manufacturers to inflate the factory price and ex-factory price of the mobile phone devices, thereby creating a stash of funds of the “out-of-contract subsidies” to be doled out to consumers, and paid out to consumers via sales stores, etc.; (b) by doing so, Company A created a false impression that customers were buying pricey mobile devices at discounted prices, thereby enticing them to subscribe to Company A’s mobile communications service, the case holding that Company A’s act constitutes the “act of enticing consumers by leading them to misunderstand the transaction terms of goods, etc. as substantially favorable than what it actually is.”
[4] Where the Fair Trade Commission imposes a penalty surcharge on a business operator that engaged in an unfair trade practice under Article 24-2 of the former Monopoly Regulation and Fair Trade Act and Article 61(1) Addenda 2 of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act, method of determining the scope of relevant goods or services that becomes the premise for the calculation of sales amount, based on which a penalty surcharge is assessed
[5] Whether the “measures necessary for any correction” under Article 24 of the former Monopoly Regulation and Fair Trade Act includes measures that are considered necessary to correct illegality of the violating act (affirmative) and the limit of these measures
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