ACT ON FAIR TRANSACTIONS IN LARGE RETAIL BUSINESS
Act No. 11086, Nov. 14, 2011
Amended by Act No. 11936, Jul. 16, 2013
Act No. 14136, Mar. 29, 2016
Act No. 14455, Dec. 20, 2016
Act No. 14839, Jul. 26, 2017
Act No. 15469, Mar. 13, 2018
Act No. 15611, Apr. 17, 2018
Act No. 15854, Oct. 16, 2018
CHAPTER I GENERAL PROVISIONS
The purpose of this Act is to contribute to the balanced national economic growth and development by maintaining fair transactional order in the large retail business and by enabling large retail business entities, suppliers, or sales floor tenants to prosper on an equal footing in a complementary relationship.
The terms used in this Act shall be defined as follows: <Amended by Act No. 15854, Oct. 16, 2018>
| (a) | A person whose retail sales for the immediately preceding business year are at least 100 billion won (for business entities recognizing revenues by a net method under the corporate accounting standards, "retail sales" refers to the total sales and, for franchisers, the sum of retail sales and sales of goods sold to franchisees: Provided, That where business period in the immediately preceding business year is less than a year, "retail sales" refers to an amount converted from the revenues in the relevant period to 12-month period; hereinafter the same shall apply); |
| (b) | A person who uses any store, at which the total area of sales floors (referring to the sum of the area calculated by multiplying the floor space of each sales floor by 95/100; hereinafter the same shall apply) is at least 3,000 square meters, for retail business; |
| 2. | The term "supplier" means, irrespective of the type of transaction, a person who supplies goods to large retail business entities so that they would sell such goods (including cases of directly supplying consumers with goods having been sold by a large retail business entity); |
| 3. | The term "sales floor tenant" means a person engaged in a business in which he/she rents part of a sales floor from a large retail business entity, sells goods to be used by consumers using such sales floor and pays the price to the large retail business entity; |
| 4. | The term "direct purchase" means a transaction in which a large retail business entity purchases goods from a supplier and takes responsibility for the sale of unsold goods among the goods he/she has purchased; |
| 5. | The term "purchase under a special contract" means a transaction in which a large retail business entity purchases goods on credit from a supplier on condition that he/she is allowed to return unsold goods among the goods he/she has purchased, and pays a sales amount after subtracting profit of a specific margin or of a specific amount after selling such goods; |
| 6. | The term "consignment sale" means a transaction in which a large retail business entity sells goods supplied by a supplier under his/her name and afterwards pays proceeds from the sales to the supplier, subtracting a rate of charge or an amount of charge; |
| 7. | The term "return" means all acts, irrespective of the form, of a large retail business entity giving supplied goods back to the suppliers, such as giving the goods to the suppliers, exchanging the goods with other goods sold by the suppliers, etc.; |
| 8. | The term "sales promotion" means, irrespective of the name or form, all events or activities performed for the purpose of increasing sales by expanding demand for goods; |
| 9. | The term "sales incentive" means, irrespective of the name, an economic benefit a supplier pays to a large retail business entity according to a condition indicated in the annual basic transaction agreement for sales promotion in the direct purchase; |
| 10. | The term "fresh agricultural, marine, and stock farm products" means agricultural, marine, and stock farm products in a fresh state which are apt to rot by nature with the passage of time, and are not processed through drying, seasoning, etc. |
| Article 2-2 (Legal Fiction as Large Retail Business Entities) |
A person who falls under either of the following, from among business entities who lease a sales floor and receive turnover rent or any economic benefit corresponding thereto (hereinafter referred to as “turnover rent, etc.”) from the tenant, shall be deemed a “large retail business entity” in the application of the provisions of Articles 6, 8, 11 through 15, 15-2, and 16 through 18: | 1. | A person who has leased any sales floor, the total retail sales of which are at least 100 billion won for the immediately preceding business year; |
| 2. | A person who has leased any sales floor, the total area of which is at least 3,000 square meters. |
[This Article Newly Inserted by Act No. 15854, Oct. 16, 2018]
| Article 3 (Exclusion from Application) |
| (1) | This Act shall not apply to any of the following transactions: <Amended by Act No. 15854, Oct. 16, 2018> |
| 1. | A transaction not deemed to give a large retail business entity a superior bargaining position over a supplier or sales floor tenant (hereinafter referred to as “supplier, etc.”); |
| 2. | Where a business entity deemed a large retail business entity under Article 2-2 fails to receive turnover rent, etc. from some of his/her multiple sales floor tenants, the transaction between such tenants and the business entity deemed a large retail business entity. |
| (2) | Whether a large retail business entity is in a superior bargaining position shall be decided by considering the following comprehensively: |
| 1. | Structure of a distribution market; |
| 2. | Actual state of consumption by consumers; |
| 3. | Business capability gap between a large retail business entity and a supplier, etc.; |
| 4. | Dependence of a supplier, etc. on transactions with a large retail business entity; |
| 5. | Characteristics of goods to be traded; |
| Article 4 (Relationship with Other Statutes) |
CHAPTER II FAIR TRANSACTIONS IN LARGE RETAIL BUSINESS
| Article 5 (Principle of Good Faith) |
Large retail business entities, suppliers, etc. shall perform their obligations in transactions in good faith.
| Article 6 (Delivery and Preservation of Documents) |
| (1) | Immediately after entering into a contract with a supplier, etc., a large retail business entity shall give to the supplier, etc. documents in which the transaction type, and other matters prescribed by Presidential Decree are specified (such documents including electronic documents under subparagraph 1 of Article 2 of the Framework Act on Electronic Transactions; hereafter in this Act the same shall apply). |
| (2) | Each of the large retail business entity, the supplier, etc. shall put his/her signature (including certified electronic signatures defined in subparagraph 3 of Article 2 of the Digital Signature Act; hereafter in this Act the same shall apply) or shall write his/her name and affix his/her seal on the documents under paragraph (1). |
| (3) | Until providing suppliers with documents under paragraph (1), large retail business entities shall not have suppliers manufacture or order goods to be supplied, nor they shall request suppliers to prepare facilities and equipment for goods to be supplied: Provided, That this shall not apply if large retail business entities request in writing with their signatures put or with their names written and seals affixed. |
| (4) | Where large retail business entities fail to provide the documents under paragraph (1), suppliers, etc. may request that large retail business entities confirm the details of contract by notifying them in writing of the contractual matters prescribed by Presidential Decree pursuant to paragraph (1). |
| (5) | Large retail business entities shall send a written reply specifying whether they approve or disapprove the content of notification under paragraph (4) within 15 days from the receipt of such notification; where they fail to send a reply within such period, it shall be presumed that the contract has been made as notified by the suppliers, etc. pursuant to paragraph (4): Provided, That this shall not apply if sending a reply is impossible due to a natural disaster or calamity. |
| (6) | Suppliers, etc. shall put their signatures or shall write their names and affix their seals on the notification prescribed in paragraph (4), and large retail business entities shall put their signatures or shall write their names and affix their seals on the reply prescribed in paragraph (5), respectively. |
| (7) | Matters necessary for the notification under paragraph (4) and a reply under paragraph (5) shall be prescribed by Presidential Decree. |
| (8) | Large retail business entities shall preserve documents prescribed by Presidential Decree concerning transactions between large retail business entities and suppliers, etc. for five years from the date a contract with suppliers, etc. terminates. |
| (9) | The Fair Trade Commission may recommend that large retail business entities governed by this Act or trade associations consisting of large retail business entities prepare and use a standard transaction contract. |
| Article 7 (Prohibition of Reduction in Payment of Goods) |
| (1) | A large retail business entity shall not reduce the payment of goods being supplied: Provided, That this shall not apply where justifiable reasons exist, such as that the goods being supplied are different from the goods set forth in the contract, are damaged, or are spoiled for reasons for which the supplier is responsible, etc. and that the price of goods is reduced within a period recognized as resonable in the relevant trade. |
| (2) | Where reduction in the payment of goods prescribed in the proviso to paragraph (1) is for fresh agricultural, marine and stock farm products, reduction shall be made within the period prescribed by Presidential Decree. |
| Article 8 (Payment of Proceeds from Sale) |
| (1) | In any of the following cases, large retail business entities shall pay the suppliers, etc. the proceeds from sale of the relevant goods within 40 days from the monthly closing date: |
| 1. | Where goods supplied according to a purchase transaction under a special contract are sold; |
| 2. | Where they manage proceeds from sale given by floor tenants; |
| 3. | Where they are entrusted with the sale of goods by suppliers, and receive and manage proceeds from sale. |
| (2) | Where large retail business entities make payment required under paragraph (1) more than 40 days after the monthly closing date, they shall pay interest, the rate of which shall be determined and publicly notified by the Fair Trade Commission up to the annual rate of 40/100, taking into account overdue interest applied by banks under the Banking Act and other economic conditions. |
| (3) | A large retail business entity shall not pay the proceeds and interest prescribed in paragraphs (1) and (2) by merchandise coupons or in kind. |
| Article 9 (Prohibition of Refusal or Delay of Receipt of Goods) |
After a large retail business entity and a supplier enter into a contract concerning the supply of goods, the large retail business entity shall not refuse or delay receipt of all or any of the relevant goods: Provided, That this shall not apply in cases prescribed by Presidential Decree, such as where the supplied goods have been damaged due to a reason attributable to the supplier.
| Article 10 (Prohibition of Return of Goods) |
| (1) | A large retail business entity shall not return all or any of supplied goods without justifiable reasons: Provided, That justifiable reasons are presumed to exist in any of the following cases if the goods are returned within a period deemed reasonable in the relevant trade: |
| 1. | Where conditions of return have been agreed in detail at the time of concluding a contract and documents clarifying such conditions of return are delivered to the supplier in cases of a purchase under a special contract; |
| 2. | In cases of consignment sale; |
| 3. | Where the goods being supplied are damaged or spoiled due to the supplier's fault; |
| 4. | Where the goods being supplied are different from the goods set forth in the contract; |
| 5. | Where the large retail business entity voluntarily assumes the loss incurred from return and obtains approval therefor from the relevant supplier; |
| 6. | Where conditions of return have been agreed in detail at the time of concluding a contract for goods (excluding fresh agricultural, marine and stock farm products), sale of which is concentrated in a certain period or season and documents clarifying such conditions of return are delivered to the supplier in cases of a direct purchase transaction; |
| 7. | Where the supplier voluntarily makes a written request for the return of goods, accompanied by objective grounds that the return of goods is directly beneficial to him/her before the date of return in cases of a direct purchase; |
| 9. | Where justifiable reasons corresponding to the provisions of subparagraphs 3 through 8 exist in cases of a direct purchase. |
| (2) | The fresh agricultural, marine and stock farm products prescribed in paragraph (1) 3 and 4 shall be returned within the period prescribed by Presidential Decree. |
| Article 11 (Prohibition on Unjustly Shifting Burden of Sales Promotional Expenses) |
| (1) | Unless the burden of expenses incurred in a sales promotional event (hereafter in this Article referred to as "sales promotional expenses") is agreed upon with suppliers, etc. as prescribed by Presidential Decree before any sales promotional event is held, no large retail business entity shall impose such expenses on a supplier, etc. |
| (2) | The contract under paragraph (1) shall be made in written form on which signatures or names and seals of a large retail business entity and a supplier, etc., are placed, and the large retail business entity shall deliver such documents to the supplier, etc. as soon as such contract is concluded. |
| (3) | The ratio of sharing sales promotional expenses under paragraphs (1) and (2) shall be determined according to the ratio of economic profit (hereafter in this Article referred to as "expected profit") a large retail business entity and a supplier, etc. are expected to directly earn respectively through sales promotional event; and where the ratio of expected profit for a large retail business entity, supplier, etc. is incalculable, the expected profit for the large retail business entity, supplier, etc. shall be presumed equal. |
| (4) | The share of sales promotional expenses under paragraph (3) to be assumed by a supplier, etc. shall not exceed 50/100. |
| (5) | Where a supplier, etc. intend to hold a sales promotional event separately from other suppliers, etc. by voluntarily making a request to a large retail business entity, the large retail business entity may consult with the supplier, etc. and determine the share of sales promotional expenses. In such cases, the provisions of paragraphs (1) through (4) shall not apply. |
| Article 12 (Prohibition against Using Employees by Suppliers) |
| (1) | A large retail business entity shall not request a supplier, etc. to dispatch employees or other human resources employed by such supplier, etc. (hereafter in this Article referred to as "employees, etc.") to work in the workplace of the large retail business entity: Provided, That this shall not apply in any of the following cases, in which the large retail business entity, the supplier, etc. agree on the terms of dispatch in writing and have such dispatched employees engage in the sale and management of goods supplied by the supplier, etc. who employ such employees, etc.: |
| 1. | Where large retail business entities bear all the expenses, such as labor costs of the dispatched employees, etc., as prescribed by Presidential Decree; |
| 2. | Where the suppliers, etc. request large retail business entities to voluntarily dispatch employees, etc. employed by them according to documents specifying the details of expected profits and expenses following the dispatch of employees, etc. and grounds for calculation, which are prepared objectively and concretely; |
| 3. | Where skilled employees, etc. who have special sales skills or ability are dispatched; |
| 4. | Where employees, etc. are dispatched to the sales floor operated at all times by suppliers, etc., who conduct purchase transactions under special contracts, in order to sell and manage the goods determined and publicly notified by the Fair Trade Commission as ones for which specialized knowledge is important due to the special qualities of such goods. |
| (2) | A large retail business entity, a supplier, etc. shall put their signatures or shall write their names and affix their seals on the documents prescribed in the proviso to paragraph (1), and the supplier, etc. shall put his/her signature or shall write his/her name and affix his/her seal on the documents prescribed in paragraph (1) 2, respectively. |
| (3) | A large retail business entity shall not have a supplier, etc. bear the labor costs of persons employed by him/her. |
| Article 13 (Prohibition of Forcing Exclusive Dealing) |
A large retail business entity shall not unduly have a supplier, etc. do exclusive transactions and shall not interfere with the supplier, etc. in their transactions with other business entities.
| Article 14 (Prohibition of Request for Management Information) |
| (1) | A large retail business entity shall not unduly request a supplier, etc. to provide any of the following information: |
| 1. | Information concerning the supply terms (including supply price) for the goods which suppliers supply to other business entities; |
| 2. | Information concerning the lease terms (including rental rate) to open a sales floor in other business entities' stores; |
| 3. | Other management information prescribed by Presidential Decree that is equivalent to the information described in subparagraphs 1 and 2, relating to the supplier, etc. or transaction partners of the supplier, etc. |
| (2) | Where a large retail business entity requests a supplier, etc. for management information falling under any of the subparagraphs of paragraph (1), he/she shall provide the supplier, etc. with documents stating the purpose of a request, matters concerning the maintenance of confidentiality, etc. before requesting management information, as prescribed by Presidential Decree. |
| (3) | Each of the large retail business entity, the supplier, etc. shall put his/her signatures or shall write his/her names and affix his/her seals on the documents prescribed in paragraph (2). |
| (4) | Where a large retail business entity requests a supplier, etc. for management information, he/she shall make a request within the minimum extent necessary for the purpose of such request. |
| Article 15 (Prohibition of Requests for Economic Profits) |
| (1) | A large retail business entity shall not have a supplier, etc., provide money, articles, services, or other economic profits to him/her or a third party without justifiable reasons. |
| (2) | Notwithstanding the provisions of paragraph (1), a large retail business entity may agree with a supplier on the details of an annual basic contract, including the purpose of paying a sales incentive, timing for payment, frequency of payment, rate and amount of sales incentive, etc. as prescribed by Presidential Decree and may receive a sales incentive from the supplier. In such cases, the sales incentive shall not exceed the extent recognized as reasonable in the relevant trade. |
| Article 15-2 (Prohibition against Undue Restrictions on Business Hours) |
A large retail business entity shall not put undue restrictions on business hours of a sales floor tenant, for instance by denying the tenant’s request for a reduction in business hours by the minimum extent necessary on account of an illness and the treatment thereof.
[This Article Newly Inserted by Act No. 15469, Mar. 13, 2018]
| Article 16 (Compensation for Costs of Equipment for Sales Floor) |
Where a large retail business entity performs any of the following acts, he/she shall pay compensation for equipment costs of the relevant sales floor to the supplier, etc., the amount of which shall be at least an amount obtained by multiplying the total equipment costs, paid by a supplier, etc. for the relevant sales floor, by the ratio of the period, from the time of such act to the final day of the contract, to the whole contract period (if the contract period is shorter than a year, the contract period shall be construed one year; hereafter in this Article the same shall apply):
| 1. | Interrupting or rejecting a transaction with the supplier, etc.; |
| 2. | Changing the location, size or facilities of the sales floor of the supplier, etc. |
| Article 17 (Prohibition against Giving Disadvantages) |
A large retail business entity shall not perform any of the following acts against a supplier, etc. without justifiable grounds:
| 1. | Having the supplier, etc. purchase merchandise coupons or articles; |
| 2. | Having the supplier, etc. supply goods at a remarkably lower supply price than the usual supply price to markets; |
| 3. | Having the supplier, etc. supply a remarkably higher quantity than normal quantity in order to hold a sales promotional event; |
| 4. | Having the supplier, etc. participate in a sales promotional event contrary to the will of the supplier, etc.; |
| 5. | Failing or delaying restoration of the supply price, of which reduction has been agreed upon for a limited period, to the ordinary price even after such period passes; |
| 6. | Having the supplier, etc. advertise goods contrary to their will; |
| 7. | Interfering with the supplier, etc. in closing a sales floor in a particular store or having the supplier, etc. open a sales floor in his/her other store, contrary to the will of the supplier, etc.; |
| 8. | Changing the location, size or facilities of a sales floor of the supplier, etc. during the contract period; |
| 9. | Changing the terms of a contract prescribed by Presidential Decree, such as the rate of sales incentive during the contract period; |
| 10. | Other acts corresponding to the provisions of subparagraphs 1 through 9 that give disadvantages to the supplier, etc. or cause the supplier, etc. to provide advantages. |
| Article 18 (Prohibition against Retaliatory Measures) |
No large retail business entity shall change the terms of a contract to the disadvantage of the supplier, etc.; restrict the supplier, etc. from the opportunity of supplying goods or renting a sales floor; or give any disadvantage in the course of implementing the contract on the ground that the supplier, etc. have engaged in any of the following activities:
| 1. | Filing an application for mediation under Article 25; |
| 3. | Cooperating with the Fair Trade Commission, such as submitting data in response to its documentary inspection of actual condition under Article 30; |
[This Article Wholly Amended by Act No. 15854, Oct. 16, 2018]
| Article 19 (Concluding Agreements among Large Retail Business Entities and Suppliers) |
| (1) | The Fair Trade Commission may recommend that a large retail business entity, a supplier, etc. conclude an agreement promising the compliance with statutes and regulations relating to a large retail business entity, mutual assistance, and cooperation. |
| (2) | Where a large retail business entity, a supplier, etc. conclude an agreement pursuant to paragraph (1), the Fair Trade Commission shall prepare and implement measures for assistance, such as granting a reward, etc. in order to encourage the implementation thereof. |
| (3) | The Fair Trade Commission shall determine matters necessary for the details, conclusion procedures, implementation evaluation, and supporting measures, etc. of an agreement prescribed in paragraph (1). |
CHAPTER III MEDIATION OF DISPUTES
| Article 20 (Establishment and Organization of Dispute Settlement Council) |
| (1) | In order to settle disputes between large retail business entities and suppliers, etc., a dispute mediation council for transactions in large retail business (hereafter in this Article referred to as the "council") shall be established in the Korea Fair Trade Mediation Agency (hereinafter referred to as the "Mediation Agency") pursuant to Article 48-2 (1) of the Monopoly Regulation and Fair Trade Act. |
| (2) | The council shall consist of nine members including one chairperson. |
| (3) | The members shall be classified into members representing public interest, members representing the interest of large retail business entities, and members representing the interest of suppliers, etc.; and each group shall be of the same number of members. |
| (4) | Persons appointed or entrusted by the Chairperson of the Fair Trade Commission, from among the persons recommended by the head of the Mediation Agency and the persons falling under any of the following, shall become its members: |
| 1. | Persons who have majored in jurisprudence, economics, business administration, or studies relating to distribution in universities, and hold or have held the position of an associate professor or higher or a position corresponding thereto in a school referred to in subparagraph 1, 2, 4 or 5 of Article 2 of the Higher Education Act or in a publicly certified research institution; |
| 2. | Persons who hold or have held the position of a judge or public prosecutor, or persons who have an attorney license; |
| 3. | Persons who hold or have held the position of a public official of Grade IV or higher (including public officials in the general service belonging to the Senior Executive Service) having experience in the duties of monopoly regulation and fair trade; |
| 4. | Persons who have abundant knowledge and experience concerning transactions and dispute resolution in the field of large retail business. |
| (5) | The chairperson shall be appointed or commissioned by the Chairperson of the Fair Trade Commission from among members representing public interest. |
| (6) | The term of office of the members shall be three years, and they may be reappointed. |
| (7) | If a vacancy among members occurs, a member filling the vacancy shall be appointed or entrusted as prescribed in paragraph (4) and the term of office of such member shall be the remaining term of office of his/her predecessor. |
| Article 21 (Restrictions on Persons Commissioned for Membership Representing Public Interest) |
| (1) | No one shall be commissioned as a member representing public interest if he/she is an executive officer or an employee of a large retail business entity, supplier, etc. at the time of the commissioning. |
| (2) | Where a person entrusted with the membership representing public interest is an executive officer or employee of a large retail business entity or a supplier, etc., the Chairperson of the Fair Trade Commission shall immediately revoke such entrustment. |
| Article 22 (Meetings of Council) |
| (1) | Meetings of the council shall be classified into meetings consisting of all the members (hereafter in this Article referred to as "plenary meeting") and meetings consisting of one member representing public interest, one member representing the interest of large retail business entities, and one member representing the interest of suppliers, etc. (hereafter in this Article referred to as "small meeting"). |
| (2) | A plenary meeting shall deliberate and decide on the following matters: |
| 1. | Matters that are not decided by a small meeting or decided to be handled in a plenary meeting by a small meeting; |
| 2. | Matters concerning establishment and revision of internal regulations of the council; |
| 3. | Other matters that are submitted to a plenary meeting by the chairperson by the need to be handled in a plenary meeting. |
| (3) | A small meeting shall deliberate and decide on matters other than those prescribed in the subparagraphs of paragraph (2). |
| (4) | The chairperson shall have charge of a plenary meeting which opens with a majority of the enrolled members in attendance and makes decisions with the approval of a majority of members present. |
| (5) | A member representing public interest shall have charge of a small meeting, at which decisions shall be made with the attendance of all members and with the approval of all members present. In such cases, the result of a meeting shall be reported to a plenary meeting. |
| (6) | When the chairperson of the council is unable to perform duties due to inevitable reasons, a member designated by the Chairperson of the Fair Trade Commission from among members representing public interest shall perform such duties by proxy. |
| (7) | A business entity who is a party to a dispute subject to mediation (hereinafter referred to as "party to a dispute") may attend meetings of the council and state his/her opinion or submit relevant data. |
| Article 23 (Exclusion, Challenge, or Recusal of Members) |
| (1) | If a member falls under any of the following, he/she shall be excluded from the mediation of the relevant matters to be mediated: |
| 1. | Where a member or his/her spouse or former spouse becomes a party to a dispute of the relevant matters to be mediated, or is a joint holder of a right or liability; |
| 2. | Where a member is or was a relative of a party to a dispute of the relevant matters to be mediated; |
| 3. | Where a member, or corporation or law firm with which a member is affiliated is giving counsel or advice on legal matters, business management, etc. to a party to a dispute; |
| 4. | Where a member, or corporation or law firm with which a member is affiliated participates or participated in the relevant matters to be mediated as an agent of the party to a dispute, or has given evidence or an expert opinion. |
| (2) | Where a member has a reason for which he/she is unable to conduct mediation impartially, parties to a dispute may apply a written challenge of such member to the council. |
| (3) | Where the application for challenge prescribed in paragraph (2) is contrary to the method prescribed in paragraph (2) or is evidently aimed at delaying mediation, such challenge shall be rejected by a decision of the chairperson. |
| (4) | Where reasonable grounds exist in the application for challenge pursuant to paragraph (2), the relevant member shall be excluded from mediation by a decision of the chairperson. |
| (5) | Where a member falls under a reason prescribed in paragraph (1) or (2), he/she may recuse himself/herself from the mediation of matters to be mediated with the permission of the chairperson. |
| Article 24 (Matters to Be Mediated by Council) |
The council shall mediate matters requested by the Fair Trade Commission or applied for by parties to a dispute, which are related to the provisions of Articles 5 through 15, 15-2, and 16 through 18. <Amended by Act No. 15469, Mar. 13, 2018>
| Article 25 (Application for Mediation) |
| (1) | Parties to a dispute may file an application for mediation with the council by submitting documents stating matters prescribed by Presidential Decree, which are related to the matters to be mediated pursuant to Article 24: Provided, That excluded herefrom is a case being investigated by the Fair Trade Commission pursuant to Article 29 before an application for mediation is filed. |
| (2) | The Fair Trade Commission may request the council to mediate a case relating to a dispute between a large retail business entity and a supplier, etc. |
| (3) | Upon receipt of an application for mediation filed under paragraph (1), the council shall immediately notify the parties to a dispute of such application for mediation. |
| (4) | The application for mediation filed under paragraph (1) shall have the effect of interrupting prescription: Provided, That this shall not apply where the application is withdrawn or dismissed. <Newly Inserted by Act No. 14136, Mar. 29, 2016> |
| (5) | In cases falling under the proviso to paragraph (4), the prescription shall be deemed to be interrupted by the first application for mediation where a demand by way of judicial proceedings, intervention in bankruptcy proceedings, attachment, provisional attachment, or provisional disposition is made within six months. <Newly Inserted by Act No. 14136, Mar. 29, 2016> |
| (6) | Prescription that has been interrupted under the main sentence of paragraph (4) begins to run anew from any of the following: <Newly Inserted by Act No. 14136, Mar. 29, 2016> |
| 1. | When a mediation settlement agreement is concluded after a dispute is successfully mediated; |
| 2. | When the mediation procedure terminates as a dispute is not settled by mediation. |
| (1) | Upon receipt of an application for mediation filed under Article 25 (1) or a request for mediation made under paragraph (2) of the same Article, the council shall initiate the mediation procedure without delay, as prescribed by Presidential Decree. <Newly Inserted by Act No. 14136, Mar. 29, 2016> |
| (2) | The council may recommend that the parties to a dispute should reach an agreement on the matters of dispute voluntarily, or prepare a settlement proposal and present it to the parties to a dispute. <Amended by Act No. 14136, Mar. 29, 2016> |
| (3) | The council may conduct an inspection, or request the parties to a dispute to submit data or to attend in person where necessary to ascertain the facts concerning the relevant matters of dispute to be mediated. <Amended by Act No. 14136, Mar. 29, 2016> |
| (4) | The council shall dismiss an application for mediation in the following cases: <Amended by Act No. 14136, Mar. 29, 2016> |
| 1. | Where the application for mediation is filed by a person who has no direct interest in the dispute to be mediated; |
| 2. | Where the application for mediation is filed, to which this Act does not apply, or for a case that is not a matter to be mediated under Article 24; |
| 3. | Where the application for mediation is filed, although the proviso to Article 25 (1) applies to the relevant dispute. |
| (5) | The council may terminate the mediation procedure in the following cases: <Amended by Act No. 14136, Mar. 29, 2016> |
| 1. | Where a party to a dispute withdraws from the mediation; |
| 2. | Where a party to a dispute has filed a lawsuit in the court before or after filing an application for mediation, or files an application for arbitration as prescribed by the Arbitration Act after having filed an application for mediation; |
| 3. | Where any cause or event prescribed by Presidential Decree occurs, of which mediation is of no practical benefit. |
| (6) | The council shall terminate the mediation procedure in any of the following cases: <Amended by Act No. 14136, Mar. 29, 2016> |
| 1. | Where parties to a dispute accept the council’s recommendation or settlement proposal, or reach an agreement, and the dispute is mediated; |
| 2. | Where parties to a dispute do not accept the council’s recommendation or settlement proposal, and consequently the dispute is not mediated; |
| 3. | Where the council fails to mediate the dispute after 60 days (90 days where both parties to a dispute agree to extend the period) from the date of notification of an application for mediation. |
| (7) | Where the council dismisses an application for mediation or terminates the mediation procedure pursuant to paragraphs (4) through (6), the council shall, without delay, file a report on the details of mediation, grounds for dismissing the application for mediation or for terminating the mediation procedure, etc. with the Fair Trade Commission, along with the relevant documents, as prescribed by Presidential Decree, and shall notify the parties to a dispute of such fact. <Amended by Act No. 14136, Mar. 29, 2016> |
| (8) | The Fair Trade Commission shall not issue a corrective order pursuant to Article 32 or make a recommendation for corrective measures pursuant to Article 33 (1) to the relevant parties to a dispute until the mediation procedure terminates: Provided, That this shall not apply where the Fair Trade Commission is already conducting an investigation pursuant to Article 29. <Amended by Act No. 14136, Mar. 29, 2016> |
| Article 27 (Preparation and Validity of Mediation Settlement Agreement) |
| (1) | Upon mediating matters in dispute successfully, the council shall prepare a mediation settlement agreement in which the mediator(s) and parties to the dispute write their names and affix their seals or sign thereon. <Amended by Act No. 14136, Mar. 29, 2016; Act No. 15611, Apr. 17, 2018> |
| (2) | Where parties to a dispute reach an agreement on the matters in dispute voluntarily and request the council to prepare a mediation settlement agreement, the council shall prepare a mediation settlement agreement. <Amended by Act No. 14136, Mar. 29, 2016> |
| (3) | Parties to a dispute shall implement matters agreed upon at the mediation and submit the result of implementation to the Fair Trade Commission. |
| (4) | Where an agreement is reached under paragraph (1) or (2) and such agreement is implemented, the Fair Trade Commission shall not issue a corrective order pursuant to Article 32 or make a recommendation for corrective measures pursuant to Article 33 (1). <Amended by Act No. 15469, Mar. 13, 2018> |
| (5) | A mediation settlement agreement prepared under paragraph (1) or (2) shall have the same effect as reconciliation in trial. <Newly Inserted by Act No. 14136, Mar. 29, 2016> |
| Article 28 (Organization and Operation of Council) |
Matters necessary for the organization, operation, mediation processes, etc. of the council in addition to the matters prescribed in Articles 20 through 27 shall be prescribed by Presidential Decree.
CHAPTER IV CASE HANDLING PROCESS BY THE FAIR TRADE COMMISSION
| Article 29 (Investigation of Violations) |
| (1) | Any person who recognizes any violation of this Act may file a report on such violation with the Fair Trade Commission. In such cases, the Fair Trade Commission shall give written notice to the large retail business entity involved of the fact that it has received a report with the consent of a reporter, as prescribed by Presidential Decree. <Amended by Act No. 14136, Mar. 29, 2016> |
| (2) | Where the Fair Trade Commission suspects a violation of this Act, it may conduct a necessary investigation ex officio. |
| (3) | Upon having conducted an investigation pursuant to paragraph (1) or (2), the Fair Trade Commission shall give the parties to the relevant case a written notice of the findings (where it intends to take measures, such as issuing a corrective order, as a result of the investigation, the details of such measures shall be included in such notice). |
| (4) | A written notice given by the Fair Trade Commission to the large retail business entity involved under the latter part of paragraph (1) shall be deemed a peremptory notice given under Article 174 of the Civil Act: Provided, That this shall not apply where the reported fact is not subject to this Act; where the Fair Trade Commission decides not to initiate the deliberation procedure on account of the elapse of the period of restrictions on disposition imposed on violations under the main sentence of Article 31; where the Fair Trade Commission clears the person reported on free from suspicion in connection with the reported fact; or where the person who has filed a report withdraws such report. <Newly Inserted by Act No. 14136, Mar. 29, 2016; Act No. 15469, Mar. 13, 2018> |
| Article 29-2 (Payment of Monetary Awards) |
| (1) | The Fair Trade Commission may grant a monetary award, within the budget, to a person filing a report or giving information on any violation of this Act and submitting evidentiary materials verifying such violation. |
| (2) | Matters regarding the scope of those eligible for such monetary award, payment standards, and procedures under paragraph (1) shall be prescribed by Presidential Decree. |
[This Article Newly Inserted by Act No. 15469, Mar. 13, 2018]
| Article 29-3 (Recovery of Monetary Awards) |
| (1) | The Fair Trade Commission shall recover a monetary award paid under Article 29-2 (1) in any of the following cases: |
| 1. | Where a person received a monetary award by illegal or improper collection of evidence, false report, false statement, or fabrication of evidence, or by other improper means; |
| 2. | Where a person received a monetary award for the same reasons under other statutes or regulations; |
| 3. | Where a monetary award was erroneously paid by mistake or other cause. |
| (2) | In recovering a monetary award under paragraph (1), the Fair Trade Commission shall notify the recipient of the amount to be recovered. |
| (3) | The person notified under paragraph (2) shall pay the amount within 30 days from the date of notification. |
| (4) | Where the person obligated to return the monetary award under paragraph (3) fails to do so by the deadline, the Fair Trade Commission may collect the amount in the same manner as delinquent national taxes are collected. |
[This Article Newly Inserted by Act No. 15469, Mar. 13, 2018]
| Article 30 (Documentary Inspection of Actual Condition) |
| (1) | In order to establish fair order in transactions in the large retail business, the Fair Trade Commission shall conduct a documentary inspection of actual condition of transactions between large retail business entities and suppliers, etc. and make public the result of such inspection. |
| (2) | Where the Fair Trade Commission intends to conduct a documentary inspection of actual condition as prescribed in paragraph (1), it shall establish a plan on the scopes of persons to be inspected, inspection period, inspection details, inspection methods, inspection procedures, extent of publicizing the result of inspection, etc.; and may request the persons to be inspected to submit data necessary for the inspection of actual condition of transactions, etc. |
| (3) | Where the Fair Trade Commission requests the persons to be inspected to submit data as prescribed in paragraph (2), it shall specify the extent and details of data, reasons for requests, deadlines for submission, etc. in writing to the persons to be inspected. |
| (4) | No large retail business entity shall request a supplier, etc. not to submit data under paragraph (2) or to submit false data. <Newly Inserted by Act No. 15611, Apr. 17, 2018> |
| Article 31 (Restrictions on Disposition Imposed on Violations) |
Where five years elapse from the date the violation of this Act ceases, the Fair Trade Commission shall not issue a corrective order, impose penalty surcharges, etc. pursuant to this Act for the relevant violation: Provided, That where a corrective order or disposition of imposing penalty surcharges is revoked according to a judicial decision, and new disposition is issued by reason of such judicial decision, this shall not apply.
| Article 32 (Corrective Orders) |
Where a large retail business entity violates Article 6 (1) through (3), Articles 7 through 10, Article 11 (1) through (4), and Articles 12 through 15, 15-2, and 16 through 18, the Fair Trade Commission may order corrective measures including ceasing such violation, prevention of further violation, payment of proceeds from sale, compensation for expenses for equipment on the sales floor, removal or revision of contract provisions, public announcement of the fact of receiving corrective orders, notification to the other party of the transaction such as a supplier, etc. of the fact of receiving corrective orders, and reporting on plans or actions for rectifying the violation. <Amended by Act No. 15469, Mar. 13, 2018>
| Article 33 (Recommendation for Corrective Measures) |
| (1) | The Fair Trade Commission may recommend that a large retail business entity should prepare corrective measures as prescribed by Presidential Decree and comply therewith. In such cases, the Fair Trade Commission shall also notify the large retail business entity of the gist that if he/she accepts such recommendation, it is deemed that the Fair Trade Commission has issued a corrective order. |
| (2) | Upon receiving a recommendation under paragraph (1), a large retail business entity shall notify the Fair Trade Commission whether he/she accepts such recommendation within 10 days from the date of the receipt. |
| (3) | When a large retail business entity who receives a recommendation under paragraph (1) accepts such recommendation, it is deemed that he/she has been issued a corrective order under Article 32. |
If repayment to a supplier, etc. is not made or is not possible, a large retail business entity who receives a corrective order under Article 32 or accepts a recommendation for corrective measures under Article 33 (1) shall deposit the subject matter of repayment for the supplier, etc. and thus be released from the fulfillment of the obligation. The same shall also apply where the supplier, etc. are unknown to the large retail business entity.
| Article 35 (Penalty Surcharges) |
| (1) | The Fair Trade Commission may impose a penalty surcharge on a large retail business entity who violates Article 6 (1) through (3), Articles 7 through 10, Article 11 (1) through (4), and Articles 12 through 15, 15-2, and 16 through 18 within the extent not exceeding the amount of supplied goods according to the calculation method prescribed by Presidential Decree or annual rents: Provided, That where the calculation of sales is not possible, etc., the Commission may impose a penalty surcharge within the extent not exceeding 500 million won. <Amended by Act No. 15469, Mar. 13, 2018> |
| (2) | Penalty surcharges under paragraph (1) shall be calculated separately for each provision governing violations but the total sum shall not exceed twice the amount of supplied goods in accordance with the calculation method prescribed by Presidential Decree or twice the annual rents under paragraph (1). |
| Article 35-2 (Liability for Damages) |
| (1) | Where a large retail business entity’s violation of this Act has caused any damage to a supplier, etc., he/she shall be liable to pay damages: Provided, That this shall not apply where the large retail business entity proves the lack of intention or negligence on his/her part. |
| (2) | Notwithstanding paragraph (1), where a large retail business entity has inflicted any damage on a supplier, etc. due to violation of Article 7, 10, 12, or 18, the court may order him/her to pay damages in the amount of up to three times the damage inflicted on the supplier, etc.: Provided, That this shall not apply where the large retail business entity proves the lack of intention or negligence on his/her part. |
| (3) | The court shall take the following into account in deciding on the amount of damages under paragraph (2): |
| 1. | The degree of intention or awareness of the likelihood of damage; |
| 2. | The severity of damage to the supplier, etc. resulting from such violation; |
| 3. | Economic benefits to the large retail business entity; |
| 4. | Fines and penalty surcharges for such violation; |
| 5. | Duration and number of such violation; |
| 6. | Financial standing of the large retail business entity; |
| 7. | Degree of efforts made by the large retail business entity to provide remedy for the damage. |
[This Article Newly Inserted by Act No. 15854, Oct. 16, 2018]
| Article 36 (Timing for Judgment on Violations) |
Where the Fair Trade Commission decides on violation of this Act, it shall make a decision, based on facts which have occurred until the date on which examination of such act is concluded.
| Article 37 (Cooperation from Heads of Relevant Administrative Agencies) |
| (1) | The Fair Trade Commission may hear the opinions of the heads of relevant administrative agencies where deemed necessary for enforcing this Act. |
| (2) | The Fair Trade Commission may request the heads of relevant administrative agencies to conduct necessary inspections or to provide necessary data where deemed necessary for enforcing this Act. |
| (3) | The Fair Trade Commission may request necessary cooperation from the heads of relevant administrative agencies where deemed necessary for guaranteeing the compliance of a corrective order issued under this Act. |
| (4) | The head of any relevant administrative agency in receipt of the Fair Trade Commission’s request to conduct inspections or to provide necessary data under paragraph (2) or to provide cooperation under paragraph (3) shall comply therewith, unless there is a compelling reason not to do so. <Newly Inserted by Act No. 14455, Dec. 20, 2016> |
| Article 38 (Application Mutatis Mutandis of the Monopoly Regulation and Fair Trade Act) |
| (4) | Deleted. <by Act No. 15854, Oct. 16, 2018> |
| (5) | Article 62 of the Monopoly Regulation and Fair Trade Act shall apply mutatis mutandis to the commissioners and public officials of the Fair Trade Commission who perform or have performed a duty under this Act or to persons who perform or have performed a duty of mediation of disputes at the council. |
CHAPTER V PENALTY PROVISIONS
| Article 39 (Penalty Provisions) |
| (1) | Any of the following persons shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 150 million won: |
| 1. | A person who imposes exclusive dealing on a supplier, etc. or interferes with a supplier, etc. in his/her transactions with other business entities, in violation of Article 13; |
| 2. | A person who demands a supplier, etc. provide information, in violation of Article 14 (1); |
| 3. | A person who changes the terms of a contract to the disadvantage of a supplier, etc., restricts a supplier, etc. from the opportunity of supplying goods or renting a sales floor or gives disadvantages in the course of implementing the contract, in violation of Article 18; |
| 4. | A person who fails to comply with a corrective order under Article 32. |
| (3) | A person who divulges confidential information or uses confidential information for a purpose other than for enforcing this Act in violation of Article 62 of the Monopoly Regulation and Fair Trade Act which applies mutatis mutandis as prescribed in Article 38 (5) shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding two million won. |
| Article 40 (Joint Penalty Provisions) |
When the representative of a corporation, or an agent or an employee of, or any other person employed by, a corporation or an individual commits any violation referred to in Article 39 (1) or (2) in conducting the business affairs of such corporation or individual, the corporation or individual shall, in addition to punishing the violator accordingly, be punished by a fine prescribed in the relevant Article: Provided, That the same shall not apply where the corporation or individual has not been negligent in giving due attention and supervision over the relevant business affairs to prevent such violation.
| Article 41 (Administrative Fines) |
| (1) | Where a large retail business entity falls under any of subparagraphs 1 through 4, an administrative fine of up to 100 million won shall be imposed; and where such business entity falls under subparagraph 5, an administrative fine of up to 200 million won shall be imposed: <Amended by Act No. 15611, Apr. 17, 2018> |
| 1. | Failing to submit data or submitting false data in violation of Article 30 (2); |
| 2. | Requesting suppliers, etc. not to submit data or to submit false data in violation of Article 30 (4); |
| (2) | Where an executive officer of a large retail business entity falls under paragraph (1) 5, an administrative fine of up to 50 million won shall be imposed; and where he/she falls under subparagraphs 1 through 4 of the same paragraph, an administrative fine of up to 10 million won shall be imposed. <Amended by Act No. 15611, Apr. 17, 2018> |
| (3) | Where an employee of a large retail business entity or any other interested person falls under paragraph (1) 5, an administrative fine of up to 50 million won shall be imposed; where he/she falls under subparagraph 1, 3, or 4 of the same paragraph, an administrative fine of up to 10 million won shall be imposed; and where he/she falls under subparagraph 2 of the same paragraph, an administrative fine of up to five million won shall be imposed. <Newly Inserted by Act No. 15611, Apr. 17, 2018> |
| (4) | An administrative fine of up to 10 million won shall be imposed on a person who fails to preserve important documents, such as contracts, in violation of Article 6 (8). <Amended by Act No. 15611, Apr. 17, 2018> |
| (6) | Administrative fines under paragraphs (1) through (5) shall be imposed and collected by the Fair Trade Commission, as prescribed by Presidential Decree. <Amended by Act No. 15611, Apr. 17, 2018> |
| (1) | Violations prescribed in Article 39 (1) may be prosecuted only where the Fair Trade Commission files a complaint. |
| (2) | Where the Fair Trade Commission recognizes that a violation prescribed in Article 39 (1) is objectively so obvious and severe as to substantially hinder order in transactions in the large retail business, the Fair Trade Commission shall file a complaint to the Prosecutor General. |
| (3) | The Prosecutor General may notify the Fair Trade Commission that a fact that constitutes the grounds for complaint prescribed in paragraph (2) exists, and request it to file a complaint. |
| (4) | Even when the Fair Trade Commission decides that the case does not constitute the grounds for complaint under paragraph (2), the Chairman of the Board of Audit and Inspection and the Minister of SMEs and Startups may request the Fair Trade Commission to file a complaint on other grounds, such as social impacts and the severity of damage to suppliers, etc. <Newly Inserted by Act No. 11936, Jul. 16, 2013; Act No. 14839, Jul. 26, 2017> |
| (5) | Upon receipt of a request to file a complaint made under paragraph (3) or (4), the Chairperson of the Fair Trade Commission shall file a complaint to the Prosecutor General. <Newly Inserted by Act No. 11936, Jul. 16, 2013> |
| (6) | The Fair Trade Commission may not revoke a complaint once a prosecution is instituted. <Amended by Act No. 11936, Jul. 16, 2013> |
ADDENDA
Article 1 (Enforcement Date)
This Act shall enter into force on January 1, 2012.
Article 2 (Applicability)
This Act shall begin to apply from the first contract concluded between a large retail business entity and a supplier, etc. after this Act enters into force.
ADDENDUM <Act No. 11936, Jul. 16, 2013>
This Act shall enter into force six months after the date of its promulgation.
ADDENDA <Act No. 14136, Mar. 29, 2016>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Article 2 (Transitional Measures concerning Effects of Interrupting Prescription)
The amended provisions of Article 25 (4) through (6) shall begin to apply from the first application for mediation filed after this Act enters into force. Article 3 (Transitional Measures concerning Effects of Mediation Settlement Agreement)
The amended provisions of Article 27 shall begin to apply from the first application or request for mediation filed or made after this Act enters into force. Article 4 (Transitional Measures concerning Effects of Preemptive Notice)
The amended provisions of Article 29 (6) shall begin to apply from the violation first reported after this Act enters into force.
ADDENDUM <Act No. 14455, Dec. 20, 2016>
This Act shall enter into force on the date of its promulgation.
ADDENDA <Act No. 14839, Jul. 26, 2017>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation: Provided, That the amendments to the statutes to be amended pursuant to Article 5 of the Addenda, which were promulgated before this Act enters into force but the enforcement dates of which have yet to arrive, shall enter into force on the enforcement date of the relevant statute.
Articles 2 through 6 Omitted.
ADDENDA <Act No. 15469, Mar. 13, 2018>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation.
Article 2 (Applicability to Prohibition against Undue Restrictions on Business Hours)
The amended provisions of Article 15-2 shall begin to apply from the first case where a sales floor tenant requests a reduction in business hours after this Act enters into force. Article 3 (Applicability to Recovery of Monetary Awards)
The amended provisions of Article 29-3 shall begin to apply to the recovery of a monetary award paid after this Act enters into force.
ADDENDUM <Act No. 15611, Apr. 17, 2018>
This Act shall enter into force six months after the date of its promulgation: Provided, That the amended provisions of Article 27 (1) shall enter into force on the date of its promulgation.
ADDENDA <Act No. 15854, Oct. 16, 2018>
Article 1 (Enforcement Date)
This Act shall enter into force six months after the date of its promulgation: Provided, That the amended provisions of Articles 17 and 18 shall enter into force on the date of its promulgation. Article 2 (Applicability to Liability for Damages)
The amended provisions of Articles 35-2 and 38 (4) shall begin to apply from the first violation committed after this Act enters into force.