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TITLE 【Syllabus of Latest Opinion】 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 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 means of fraud,” which is stipulated as one of 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 is unfair trade practice and constitutes the act of enticing customers by fraudulent means
[3] In a 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 to 2010 and whose distribution was conducted by Company A, Company A agreed with the three domestic mobile phone manufacturers to inflate the factory price and ex-factory price of mobile phone devices, thereby creating a stash of funds of the “out-of-contract subsidies” to be given out to consumers, and gave them to consumers via sales stores; (b) by doing so, Company A created a false impression in consumers that they were buying pricey mobile devices at discount 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 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 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 calculation of sales amount, based on which a penalty surcharge is calculated
[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 to be necessary to correct illegality of the violating act (affirmative) and the limit of these measures
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