provides disadvantages in that process, and ③ such conduct is an unreasonable act. A case in point is the Supreme Court’s precedent. In the case, a company in a superior position set an unreasonably short due date for product supply, terminated, without any justifiable reason, the supply contract for failing to meet the due date, and imposed a compensation for late delivery on the trading partner. In addition, the KFTC viewed that an act of large retailers to unilaterally change the terms of payment under the product purchase contracts (from 100% cash payment to payment on note, with 30%~50% paid in cash) to the disadvantage of the sellers is categorized as an act of providing disadvantages by abusing its superior position.10
4) Enforcement method
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 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. 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