표시광고법상 부당한 표시광고의 합헌적 판단 기준 -서울고등법원 2010. 12. 2 선고 2010누24311판결(확정)의 의미-

The Constitutional Law guarantees all citizen’s freedom of expression. But such freedom and rights derived therefrom may be restricted by Act when necessary for the maintenance of law and order or public welfare. Under this constitutional principle, the freedom of expression may be restricted. The Fair Labeling and Advertising Act (the “Act”) is the most representative legislation that restricts the freedom of expression regarding the labeling and advertising. The purpose of the Act is to prevent unfair labeling and advertising of products and services likely to deceive or mislead consumers and to facilitate the provision of correct and useful information to consumers so as to establish fairness in trade and to protect consumers. Therefore, if the Korea Fair Trade Commission (“KFTC”) apply the Act to a particular labeling or advertising, it should be considered, from constitutional principle on the necessity for the maintenance of law and order or public welfare,whether the restriction of the labeling or advertising is necessary or not. Although there is a false or exaggerated expression in a labeling or advertising, if the requirement of possible the misunderstanding by consumers is not satisfied, the necessity to restrict the labeling or advertising is not accepted considering the constitutional basic human right. In this point,judgment of the possibility of misunderstanding by consumers to be caused by a particular labeling or advertising is an essential matter. There are three (3) requirments to judge the possibility of the misunderstanding by consumers, (1) The level of the consumers, (2) Definition of the consumer group to be standard, (3) and Consumer’s schema. Until now, the KFTC and Court have not been very keen in applying these requirements. But recently,the Seoul High Court rendered a meaningful judgment, providing a relatively detailed analysis. In the judgment, the Court analyzed the meaning of the possibility of the misunderstanding by consumers, applied to the case, and finally judged that there was no possibility of the misunderstanding by consumers. The Seoul High Court’s judgment was finalized by the Supreme Court in April, 2011. With these judgments, it is expected that there will be more discussions on requirements of the unfair labeling and advertising,including the meaning of the misunderstanding by consumers.