[2] The standard for determining whether an implied agreement between the franchiser and the franchisee regarding the franchise agreement has been reached

[3] Where the specific and direct judgment on the matters alleged by the parties is not indicated in the judgment, but in light of the overall purport of the reasoning of the judgment, or where it is evident that the assertion will be rejected although it did not make a decision, whether there was an omission in the judgment (negative)

[4] Whether Article 64 of the Commercial Act shall apply or apply mutatis mutandis to not only a claim arising from a commercial activity but also a claim corresponding thereto (affirmative)

[5] In a case where: (a) a franchisee Gap et al. claimed and received an amount equivalent to a certain percentage of the sales revenue of the store from Eul et al. on the part of "SCM Adm" (hereinafter "Adm") that was not based on the franchise agreement against Eul et al., a franchisor; and (b) a franchisee et al. sought a reasonable return of the amount, the case holding that the statute of limitations for the above claim for return of unjust enrichment expires if it is not exercised for five years pursuant to Article

[2] In order to recognize the fact that an implied agreement on the franchise agreement has been reached between a franchiser and a franchisee that is disadvantageous to a franchisee, the determination must be made with careful consideration of the following: (a) the social and economic status of the franchiser and the franchisee; (b) the details and overall contents of the franchise agreement; (c) whether the franchisor provided sufficient information to the extent that it could express the intent to conclude such implied agreement to the franchisee; (d) whether there are special circumstances that the franchisor would not specify the agreement in the franchise agreement in the franchise agreement at risk of disadvantage, such as legal uncertainty and imposition of penalty surcharges; and (e) the degree of disadvantage the franchisee entered into due to the terms of the agreement; and (e) the degree of the disadvantage the franchisee entered into; and (e) transaction practices. Therefore, unilaterally following the franchisor’s demand regardless of its intent due to relatively weak information and negotiating power; and (e) the establishment of a fair trading order in the franchise business and the balanced development of the franchise headquarters and the franchisee on an equal footing basis to ensure that the legislative intent of the Fair Transactions in Franchise Business Act

[3] The reasons in a written judgment include, to the extent that the text of the judgment can be recognized as being justifiable, a judgment on the party’s assertion and other means of offence and defense, and there is no need to determine all of the parties’ allegations or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if the specific and direct judgment on the party’s assertion was not indicated in a written judgment, it cannot be deemed an omission of judgment if it can be known that the assertion was cited or rejected in light of the overall purport of the reasons in the judgment, and even if it was obvious that the assertion was rejected even if the decision was not actually made, it cannot be said that there

[4] Article 64 of the Commercial Act may be applied or applied mutatis mutandis to claims arising from commercial activities as well as claims corresponding thereto.

[5] In a case where the franchisee Gap et al. filed a claim against Eul et al. for an amount equivalent to a certain percentage of the sales revenue of the store with the item "SCM Adm", which is not a basis for the franchise agreement, against Eul et al., and sought a considerable return of the amount, the case holding that the statute of limitations for the above claim for return of unjust enrichment expires if it is not exercised for five years pursuant to Article 64 of the Commercial Act, on the grounds that the claim for return of unjust enrichment claimed by Gap et al. was based on the franchise agreement which is a commercial activity for both Eul et al. and Eul et al., and that Eul et al. bear the same obligation for return of unjust enrichment as it was caused by the fact that Eul et al. concluded the franchise agreement in a standardized manner and operated the franchise business, and thus, it is necessary to promptly resolve the transaction relation in light of the background and cause of the claim.

1. Case history

Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. The Defendant is a franchisor under the Fair Transactions in Franchise Business Act (hereinafter “Fran Business Act”) that grants franchisees a right to operate a franchise store that sells skins, etc. in accordance with certain quality standards or business methods using business marks, such as the trademark, trade name, and sales system of “Piza” owned by the Defendant. The Plaintiffs are franchisees under the above Act, who are operating a Piza va franchise store (hereinafter “each of the instant franchise stores”) with the aforementioned franchise license granted by the Defendant.

B. In order to operate each of the instant franchise stores, the Plaintiffs entered into a franchise agreement with the Defendant as shown in Attachment 2 of the lower judgment, and some of the Plaintiffs subsequently renewed the franchise agreement (hereinafter “each of the instant franchise agreements”). The main contents of the franchise agreement include that the Defendant grants the Plaintiffs the right to use the system, system, property, and marks for the operation of the Huva Ba Ba Ba Ba Ba, and the Plaintiffs pay the Defendant the initial franchise fee (i.e., USD 45,500, USD 22,400, depending on the form of store), fixed fee (up to USD 45,500, USD 22,400), advertising fee (up to 6% of sales revenue

C. The Defendant: (a) drafted and sent to each chain store monthly a written claim for the amount of money corresponding to ① fixed fee, ② advertising fee, ③ raw material cost, ④ call center cost, ⑤ other expenses (such as various service charges, cost of computer network and program maintenance cost, customer satisfaction inspection fee, external audit cost, various education cost, and protocol fee, etc.). Since 2003, franchisees, including the Plaintiffs, filed a monthly claim with the Defendant. Since 2003, the Defendant filed a claim with the Defendant for the amount of money corresponding to KRW 0.34% through 0.8% (time difference) of the sales revenue of each store, and franchisees, including the Plaintiffs, paid it to the Defendant each month.

D. From April 20, 2012, the Defendant: (a) entered into a new franchise agreement from around April 20, 2012, or from pre-existing franchisees, the Defendant: (b) entered into and issued a written agreement containing the content that “the Administration Fee means part of the expenses incurred in purchasing agency, marketing, CER operation, computerized support, customer counseling room operation, etc., jointly owned by the Defendant with the franchise store; (c) the Administration Fee shall be set at 0.8% on the basis of sales (Provided, That the base rate of 0.8% may be adjusted through bilateral consultation in consideration of all the circumstances, such as future inflation).” (hereinafter “instant agreement”). Some of the Plaintiffs also drafted and delivered it to the Defendant.

E. The Plaintiffs asserted that the Defendant’s claim against the Plaintiffs for the Administration Fee without finding the grounds under each of the instant franchise agreements constituted unjust enrichment, and filed the instant lawsuit claiming the return of unjust enrichment equivalent to the Administration Fee that the Plaintiffs paid to the Defendant.

2. Judgment on the Defendant’s grounds of appeal

A. Regarding ground of appeal No. 1

(1) In a case where there is a difference between the parties regarding the content of the agreement and its interpretation, and the interpretation of the intent of the parties expressed in the disposition document is at issue, the content of the agreement shall be reasonably interpreted in accordance with logical and empirical rules, common sense, and common sense of transaction by comprehensively considering the following: (a) the motive and background leading up to the conclusion of the agreement; (b) the purpose and genuine intent to be achieved by the agreement; and (c) transaction practices (see Supreme Court Decision 2002Da23482, Jun. 28, 2002)

The Franchise Business Act defines an information disclosure statement as a document that contains matters prescribed by Presidential Decree concerning the general status of a franchisor, the current status of franchise business, the specific matters concerning the franchisor and its executives, the burden of a franchisor, conditions and restrictions on business activities, support for the management and business activities of a franchisor and explanation of education and training, etc. (Article 2 subparag. 10). A franchisor shall register an information disclosure statement to be provided to a prospective franchisee with the Fair Trade Commission and the Fair Trade Commission shall, in principle, disclose it to the public (Article 6-2). According to the Franchise Business Act, the Fair Trade Commission may refuse the registration of an information disclosure statement or request a change in the details thereof if the information disclosure statement is registered by fraud or other improper means (Articles 6-3 and 6-4). If a prospective franchisee has received advice from a prospective franchisee on an information disclosure statement, and 14 days (7 days if a prospective franchisee or a franchise trader has received advice from an attorney-at-law or a franchise trader) have no significant influence on the prospective franchisee's receipt or provision of information (Article 7).

The Franchise Business Act provides that a franchisor shall not receive a franchise fee or enter into a franchise agreement unless 14 days have passed from the date a franchise agreement stating matters concerning the payment of a franchise fee, etc. was provided to a prospective franchisee so that a prospective franchisee can understand the details of the franchise agreement in advance. The former Franchise Business Act (amended by Act No. 14812, Apr. 18, 2017) also stipulates that a franchisor shall provide a prospective franchisee with the foregoing franchise agreement to a prospective franchisee before the date of entering into the franchise agreement or the first receipt date of a franchise fee (Article 11(1) and (2) of the Enforcement Decree of the Franchise Business Act). Article 5-2(1) of the Enforcement Decree of the Franchise Business Act provides that a franchisor shall submit an application for new registration when he/she intends to register an information disclosure statement, and that the franchisor shall immediately attach a copy of the franchise agreement form to the balance sheet and profit and loss statement for the preceding three business years, and a

Further to the above statutory provisions and the content that a franchisor shall enter in an information disclosure statement and a franchise agreement, in full view of the legislative purpose of the Franchise Business Act and the purport of the information disclosure statement system that intends to prevent adverse effects that may arise due to the structural characteristics of the franchise business and protect the rights and interests of franchisees in a relatively unfavorable position by providing prospective franchisees with sufficient information on the franchisor and the franchise business, etc. necessary to enter into the franchise agreement before entering into the franchise agreement, the franchise disclosure statement cannot be deemed to be incorporated into the franchise agreement as part of the franchise agreement on the sole ground that the information disclosure statement contains unfavorable contents in the franchise disclosure statement and it is registered with the Fair Trade Commission and made public or provided to franchisees before entering into the franchise agreement.

(2) The lower court determined that the Defendant could not seek the payment of the Administration Fee from the Plaintiffs solely on the ground of the aforementioned provision merely because Article 2.3 of the instant franchise agreement merely stated that “the first franchise fee and fixed fee do not include the Defendant’s specific obligation or the consideration for the performance of the service.” Furthermore, the lower court determined that the information disclosure statement stating the imposition of the Administration Fee cannot be deemed as the content of each of the instant franchise agreement, and thus, it cannot be deemed as the ground for the imposition of the Administration Fee. In light of the aforementioned legal principles and records, the lower court did not err by misapprehending the legal doctrine regarding the interpretation of the parties’ intent and the establishment of the agreement, or by exceeding the bounds of the principle of free evaluation of evidence contrary to logical

B. Regarding ground of appeal No. 2

(1) In general, for the formation of a contract, there is a mutual conflict between the offer and acceptance. However, such declaration of intent may not be explicitly or explicitly made (see Supreme Court Decision 2011Da30765 decided September 29, 201, etc.).

In the case of a franchise agreement, there are many cases where a franchisor has developed and constructed a franchise business system and accumulated experience in the operation of a franchise store, and thus has superior advantages to franchisees in terms of information or negotiating power. In general, a franchise agreement is concluded using a franchise agreement in the form of terms and conditions prepared in advance by a franchisor. As such, a franchisor has an opportunity to prepare the terms and conditions of a franchise agreement in advance and specify the terms and conditions favorable to him/her in the franchise agreement by using information and negotiating power as mentioned above in the process and to eliminate uncertainty in advance related thereto. Meanwhile, the Franchise Business Act requires a franchisor to issue a franchise agreement to a prospective franchisee prior to the conclusion of a franchise agreement (Article 11(1) and (2)), stating that the Fair Trade Commission may order measures necessary for correcting violations or impose a penalty surcharge on a franchisor that violates such provision (Articles 33(1) and 35(1)).

In full view of the foregoing circumstances, in order to recognize the fact that an implied agreement on the terms and conditions of a franchise agreement between a franchiser and a franchisee has been reached, the determination must be made carefully by comprehensively taking into account the following: (a) the social and economic status of the franchiser and the franchisee; (b) the process and overall details of the conclusion of the franchise agreement; (c) whether the franchisor provided sufficient information to the extent that it could express the intent to conclude the agreement; (d) whether there are special circumstances that the franchisor would not specify the terms and conditions in the franchise agreement at risk of disadvantage, such as legal uncertainty and imposition of penalty surcharges; and (e) the degree of disadvantage the franchisee entered into due to the terms and conditions of the agreement; and (e) transaction practices, etc. of the franchisor regardless of its will; and (e) accordingly, the unilateral adoption of the franchise agreement according to the request of the franchiser regardless of its will is recognized as having been agreed upon by the franchiser and the franchisee; (e) establishing a fair trading order and developing mutually complementary and balancedly on equal terms.

(2) The lower court determined that: (a) the Defendant claimed various fees, expenses, etc., including the Administration Fee, which are not expressly specified in the instant franchise agreement via the payment claim; (b) franchisees, including the Plaintiffs, without raising any objection; and (c) the Defendant registered with the Fair Trade Commission an information disclosure statement containing the fact that the Defendant imposed franchisees on August 29, 2008 a franchise service fee amounting to 0.55% of the monthly sales; (c) the Defendant announced the establishment or modification of the Administration Fee rate on the internal computer network in 2005, 2007, and 2012; (d) the business presentation or the original DNA data distributed to prospective franchisees; and (d) the Defendant notified some franchisees and meetings of the Administration Fee increase, but in light of the following circumstances, it cannot be deemed that there was an implied agreement between the Plaintiffs and the Defendant on the payment of the Administration Fee:

(A) The information disclosure statement does not clearly state what service the “member store service fee” is the price for the service, nor does there be no explanation as to what cost the member shop fee is specific or how to calculate it. There is no circumstance that franchisees, including the Plaintiffs, were aware of the items constituting the member shop, the basis for calculating the rate, etc., or that the Defendant allowed franchisees to arbitrarily determine the fee.

(B) There is no evidence suggesting that the defendant has undergone substantial consultation with the representative of the franchisee.

(C) The Defendant’s written request for the payment is written with the Administration Fee. However, the Defendant prepared a written request for the payment of individual services rendered for the operation of the franchise store by clearly classifying the costs incurred for the operation of the franchise store. It seems that it was difficult for the Plaintiffs to understand that the Administration Fee stated in the “SSAdm” is “member store service fee” as one of the several payment items written in English, including the aforementioned expense items. The Plaintiffs are likely to have perceived the Administration Fee as one of the other expenses that were written in the information disclosure statement or the original equipment, etc.

(D) Article 23.1 of the instant franchise agreement stipulates to the effect that the agreement includes both the parties’ agreement on the principal terms and conditions of the agreement. In light of the foregoing, if a new agreement is reached between the parties on the principal terms and conditions of the agreement, it is anticipated that the agreement will be amended or a separate agreement will be made.

(3) Examining the aforementioned legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the establishment of implied agreements, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, without exhaust all necessary deliberations, contrary to what is alleged in the grounds of appeal.

C. Regarding ground of appeal No. 3

In the reasoning of a written judgment, it would be sufficient to indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all allegations by the parties or all means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if no specific and direct judgment on a party’s allegations is indicated in a court judgment, it cannot be deemed an omission of judgment if it can be known that the assertion was accepted or rejected in light of the overall purport of the reasoning of the judgment, and even if it is obvious that the assertion would be rejected even if the judgment was not actually rendered, there is no error of omission of judgment due to the lack of influence on the conclusion of the judgment (see, e.g., Supreme Court Decision 2011Da87

The court below did not explicitly state the reasons for determination as to the assertion that the defendant had legal grounds for receiving the Administration Administration Fee (excluding the Administration Fee received from the plaintiffs who prepared the instant agreement) by receiving the Administration Administration Fee (excluding the Administration Fee received from the plaintiffs who prepared the instant agreement) from the plaintiffs, and that the defendant had legal grounds for receiving the Administration Administration Fee under Article 61 of the Commercial Act.

However, since the overall purport of the reasoning of the judgment below is that the receipt of the Defendant’s free will does not have any legal ground, it is reasonable to view that the purport of rejecting the Defendant’s assertion that there is a legal ground to receive the free will by putting the free will pursuant to Article 61 of the Commercial Act is reasonable. Moreover, in order to exercise the Defendant’s right to demand remuneration against the Plaintiffs under Article 61 of the Commercial Act, the Defendant must at least claim and prove the specific content of the services or services provided by the Defendant for each Plaintiff, and at least the amount of remuneration corresponding thereto, in order to exercise the Defendant’s right to demand remuneration under Article 61 of the Commercial Act, and it is evident that the Defendant’s assertion is dismissed (the original trial also determined that there was no assertion and proof as to the specific amount of profits the Plaintiffs acquired from the provision of services by the Defendant’s assertion

3. Regarding the plaintiffs' grounds of appeal

A. Regarding ground of appeal No. 1

For the reasons indicated in its holding, the lower court determined that the Defendant’s act of preparing and delivering the instant agreement from the Plaintiffs constitutes unfair trade practices prohibited by the Franchise Business Act, or that the provisions of the instant agreement concerning the Administration Fee do not constitute “a clause which has lost fairness contrary to the principle of trust and good faith” under the Act on the Regulation of Terms and Conditions, and that the Defendant fulfilled its duty to explain the terms and conditions of the instant agreement to the Plaintiffs.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the interpretation of a franchise agreement, the prospective franchisees, franchise business operators, unfair trade practices, unfair terms and conditions prescribed in the Act on the Regulation of Terms and Conditions, the duty to explain terms and conditions, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

B. Regarding ground of appeal No. 2

Article 64 of the Commercial Act may apply or apply mutatis mutandis to claims arising from commercial activities as well as claims corresponding thereto (see, e.g., Supreme Court Decision 2013Da214871, Jul. 24, 2014). Claims for return of unjust enrichment claimed by the Plaintiffs in the instant case are arising from each of the instant franchise agreements, which are conducted commercial activities for both the Plaintiffs and the Defendant. In addition, in light of the developments leading up to the occurrence of claims by the Plaintiffs, including the fact that the Defendant is liable for the return of unjust enrichment with the same content as that the Defendant bears to the franchisees who carried out franchise agreements in a standardized manner, and thus, it is necessary to promptly resolve the relevant transactional relationship. Accordingly, the extinctive prescription expires if the Plaintiffs’ aforementioned claims for return of unjust enrichment are not exercised for five years pursuant to Article 64 of the Commercial Act.

In the judgment below that made the same purport, there were no errors by misapprehending the legal principles on the prescription period for commercial claims, as alleged in the grounds of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Plaintiffs: Omitted

[Attachment 2] List of Plaintiffs: Omitted

Justices Ko Young-han (Presiding Justice)