거래상 지위의 남용행위의 거래상대방에 따른 위법성 판단기준 - 대법원 2011. 5. 13. 선고 2009두24108 판결 -

Recently, Korean Supreme Court, in case where the plaintiff company set a goal through Gaya Cable TV belonging to the plaintiff company, to subcontractors to attract new subscribers of Cable TV and the Internet, and the plaintiff company reduced subcontractors’ commission fees which the pliantiff company should pay, affirmed the judgment below which decided that hindering subcontractors’ free decision-making or coercing them disadvantage such as above acts was likely to hinder the fair trade as abusing the trade position(imposed sales target). Article 23(1) of the Monopoly Regulation and Fair Trade Act has a clause prohibiting on unfair business practices and unfair business practices involve various types of illegal practices, which causes various legislation and interpretation arguments on both classification of practice type as a formal requirement and standards of judging illegality as practical requirement. Accordingly, national arguments on unfair business practices have been focused on both how to deal with the types of ban not related to competition restriction effect with respect to formal requirements and how to interpret the meaning fair trade hindering or unfairness with respect to practical requirements. Freedom of competition is worth protecting from unfair methods. That’s why fair trade hindering should be judged based on entire economcial legitimacy and as much as prohibiting abusing the trade position is supposed to be intervention in free economic activities of private sectors, practices intervention targets should be limited to the case where the trade position of one transaction party is significant enough to bind the decision-making of the other party and abusing trade position cause a disadvantage to the other transaction party situated in weaker position. Then, standards of judging illegality needs to depend on the amount of information which the transaction parties participating in economic activities could get, the parties’ capacity to collect and deal with information or the balance degree of the parties’s position. Namely, if the other party is not a business, the more strict standards shall be needed. Unfair Commercial Practices Directive concerning unfair business-to-consumer commercial practices in the internal market which EU adopted on May 11,2005, could be a good reference on differentiation of standards of judgment on illegality depending on transaction adversary.