There are two methods of enforcement against unfair trade practices, such as the civil claim
for damages and the administrative action. The former is adopted by the United States and
Germany that focus on the principles of market economy and private autonomy, while the
latter is adopted by Korea and Japan that emphasize government’s intervention. The
regulation on unfair trade practices is also divided into two types, such as the general
provisions and the special provisions. Whereas the US and Germany have general provisions
stipulated in their laws, Korea and Japan include specific provisions in their legal systems.
III. Main Issues
A main issue in the KFTC’s decision and the courts’ judgments in the case was whether the
insurers’ non-payment of part of insurance payouts had constituted an act of “giving the
transacting partner disadvantages in the execution process of the transaction”, one of the “acts
of engaging in a trade with a transacting partner by unfairly taking advantage of its own
position in the transaction” set forth in Article 23(1) subparagraph 4 of the MRFTA.
1. Issue of whether an act of providing disadvantages could be acknowledged
In its decision, the KFTC concluded that the respondents had held a superior position and
their conduct constituted an act of providing disadvantages by intentionally not paying
indirect insurance payouts (omission) in violation of their obligation to consider reasonable
benefits for the victims, and that their conduct could be seen as an unreasonable act in light of
normal trade practices. The KFTC’s rationale in its decision will be further explained in this
section.
1) Issue of whether there was a superior position
The KFTC paid attention to the nature of the contractual relationship, based on the
insurance policy. The agency viewed that, in addition to the liability for bodily injury, the
liability for property damage under the automobile insurance policy had in effect the nature
of compulsory insurance. Unlike bodily injury insurance (formerly, liability insurance) that
was compulsory under the Motor Vehicle Compensation Guarantee Act, property damage
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insurance was not mandatory until January 2005. As a car owner had to purchase a property
damage insurance policy covering at least KRW 10 million pursuant to this Act from
February 2005, as much as 86% to 92% of automobile insurance policies included property
damage liability, which implies that such liability was actually mandatory in its nature.
The KFTC concluded that there was power imbalance because the insurers, mostly large
enterprises, seemed to be in an advantageous position, compared with the victims who were
insurance consumers, in terms of bargaining power and business capability. These insurance
companies also had extensive experience and legal knowledge about insurance. However, the
victims found it difficult to argue about the insurance payouts since they were in lack of legal
knowledge about the provisions on damage compensation stipulated in the insurance policy.
Thus, the victims had to accept the damage assessment (insurance payment calculation)
determined by the respondents, which means information imbalance. In particular, unlike
commercial claims with five years of extinctive prescription, automobile insurance claims
would be extinguished by prescription in a short period of two (or three) years.11 Thus, if
insurance consumers including the victims were not aware of their right due to the lack of
adequate explanations about compensation for actual damage set forth in the insurance
clauses, it would be highly likely that their rights and interests are infringed upon, which was
a reasonable decision of the KFTC. It also considered the circumstances where the victims of
a car accident could not choose an insurance company to exercise their claim for damages,
and that, in reality, most of them could not but had disadvantages as they did not know about
the compensation for non-use of a rental car even when the insurers caused disadvantages
through the passive omission of their action.
2) Issue of whether an act of providing disadvantages is unreasonable in light of normal trade
practices
The KFTC recognized the disadvantages which were provided by the respondents as follows:
In this case, the disadvantages were related to monetary loss (non-payment of insurance
payouts set forth in the insurance clauses). As there was no dispute over the existence and
scope of the damage compensation liability, it is deemed that the existence of the damage and
its scope (amount of damage)12 for which the respondents were liable were clearly defined