Law Firm Yangyang, Attorney Park Do-young, Counsel for the defendant-appellant

Attorney Dog-sik, Attorney Dog-ho, Ma-ho, Lee Dong-ho

Law Firm LLC, Attorney Park Jae-soo

Attorney Park Jae-sik, Park Jae-sik, Park Jae-young

2. The Plaintiff (Appointed Party) bears the total cost of litigation between the Plaintiff (Appointed Party) and the Defendant.

A. The Defendant is a corporation that manufactures and sells a mobile phone C (hereinafter referred to as the “instant product”) as a corporation with the purpose of manufacturing, selling, collecting, leasing, and providing services, etc. electronic electrical machinery, tools, and related parts. The Plaintiffs are consumers who purchased the instant product from the Defendant.

B. On August 19, 2016, the Defendant first released the instant product at home and abroad, and on the 24th day of the same month, 50,000 won. On the 31st day of the same month, an explosion accident occurred during the instant product charging at home and abroad, and thereafter, on the 31st day of the same month, one week from the first accident following a series of similar explosion accidents in Korea and abroad, the Defendant suspended the domestic sales of the instant product and announced the entire domestic call of the instant product after the date of suspension.

C. Around September 8, 2016, the U.S. Consumer Safety Commission (CPSC) and the Federal Aviation Agency (FA) recommended the suspension of the filling and use of the instant product. The Ministry of Land, Infrastructure and Transport of the United States prohibited on September 10, 2016 from using the instant product in an aircraft and carrying the instant product in a consignment baggage.

D. From the 12th day of the same month, the Defendant lent the instant product to the domestic consumers who purchased the instant product, and from the 19th day of the same month, the Defendant exchanged the instant product with a new product replaced by the distribution rate.

E. From October 1 of the same year, the Defendant began to sell a new product replacing the invoice of the instant product, but the case of the new product was re-exploded at home and abroad. On the 11st of the same month, the Ministry of Trade, Industry and Energy recommended the Defendant to suspend the use, exchange, and new sale of the instant product, and the Defendant eventually suspended the sale and exchange of the instant product (hereinafter “the instant simple measure”).

F. From the 13th day of the same month, the Defendant: (a) exchanged the instant product into another product manufactured by the Defendant or another company; or (b) refunded product purchase costs (hereinafter referred to as “the instant call measure”); and (c) on November 1 of the same year, issued cphones equivalent to 30,000 won that can be used in the Defendant’s mobile cphone to all buyers responding to the instant call measure.

G. Meanwhile, the Defendant, upon the recommendation of the National Technical Standards Board, ordered the improvement of the rate of recovery of the instant product in accordance with the instant recall measure, took a measure to limit the amount of charge for the instant product sold in Korea from October 29 of the same year to 60% (hereinafter “instant charging restriction measure”). Thereafter, the Defendant completely suspended the use of the instant product by limiting the amount of charge for the instant charging restriction measure from January 10, 2017 to 15%, and from March 28, 2017 to 0%.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 6, 11, Eul evidence 7 through 9 (each number is included; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiffs' assertion

The contents to be stated in this part are as stated in Section 2. A of the reasoning of the judgment of the court of first instance, and thus, they are quoted in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Determination

A. Presumption: The nature of the claim sought by the plaintiffs

The plaintiffs are not claiming against the defendant for compensation for their own life, body, or property damage due to defects in the Product Liability Act, or they are not liable for warranty as a seller. It seems that the plaintiffs who purchased them due to intentional or negligent acts committed by the defendant's voluntary recall procedures that sold defective products to the extent of this, and solely sought the benefits and convenience of the defendant, are claiming for compensation for damages based on Article 750 of the Civil Act for time, property, and mental damage suffered in the course of recall.

Although it is not clear whether the defendant's intentional or negligent manufacture of defective products, and whether the call measures for the product of this case were taken, the defendant's assertion that the product of this case had intention or negligence is examined.

B. Whether there was intention or negligence to the defendant

1) Whether any defect exists in the product of this case

In full view of the following circumstances, the facts as seen earlier, Gap evidence Nos. 8, Eul evidence Nos. 1, 2, and 10, together with the purport of the entire pleadings, it cannot be deemed that there was any defect that could cause an explosion to each of the products of this case purchased by the plaintiffs. However, it is reasonable to view that the defendant is liable for violation of the duty of care in the manufacture of the product of this case, as long as the occurrence of an explosion to some of the products of this case, such as the purchase by the plaintiffs, led to the result that the plaintiffs purchased the product of this case according to the defendant's recall measures taken in order to prevent the occurrence of

A) On February 6, 2017, the Ministry of Trade, Industry and Energy announced the news report to the effect that “the cause of the instant product was presumed to have been combined with the structure of the exhauster and its manufacturing process,” and that “the occurrence of the instant product was presumed to have functioned in the complex.” However, the instant product is an integrated type of product installed on a smartphone with the exhauster, and the process related to the installation of the exhauster is not only under the direction and involvement of the Defendant, but also under the direction and involvement of the Defendant, and the Defendant can decide all matters related to the selection of the exhauster and the quality control of the mobile phone as a sales company that sells the mobile phone as a finished product. As such, in relation to the mobile phone buyer, the Defendant is bound to be liable for the said defect.

B) immediately after the release, the instant product recommended the U.S. Consumer Safety Commission and agencies, including the National Technical Standards Board, to suspend the use and sale of the instant product, as an explosion occurred in Korea and abroad, and the U.S. and Korea prohibited the use of the aircraft in Korea.

C) The Defendant’s call measures on the instant product are not limited to the products in which an explosion occurred, but subject to the entire product of the instant product sold by the Defendant. In addition, the Defendant taken a step-by-step charging restriction measures to protect the lives, bodies, or property of consumers who did not respond to the call, thereby preventing them from using the instant product.

D) On January 24, 2017, the chairperson of the U.S. Consumer Safety Commission (CPSC) ordered consumers using the product of this case to exchange and refund the product of this case, since the excessive heat and fireation caused by defects in the distribution of the product of this case are serious. The Ministry of Trade, Industry and Energy of Korea has not yet recovered approximately 30,000 of the product of this case sold in Korea through the news report materials on February 6, 2017, and it is legitimate to actively participate in the exchange and refund of the product of this case for safety purposes.

2) Whether there was any defect in the call measures for the instant product

In full view of the following circumstances, it is difficult to view that the Defendant had intention or negligence on the part of the Defendant, who sought only the Defendant’s interest and convenience, infringed the Plaintiffs’ right of choice and right of use, or did not provide the Defendant’s customer center counselors with accurate guidance, and did not sufficiently supply the substitute products to be exchanged with the instant products, and thus, caused the Plaintiffs to visit multiple places of exchange. In full view of the following circumstances, it is difficult to view that the Defendant had intention or negligence on the part of the Defendant, by failing to provide the Defendant’s customer center counselors with accurate guidance.

A) Considering the period from the time when an explosion accident of the instant product occurred in Korea for the first time until the Defendant ceased the domestic sale of the instant product and announced the recall, the Defendant’s commencement of the sale of a new product replacing the distribution of the instant product from the time when the Defendant started to sell the instant product, and the developments and duration from the time when the Defendant became aware of any defect in the instant product, it would be deemed that the Defendant took a relatively swift call measure from the time when the Defendant became aware of such defect.

B) The Defendant’s call measures on the instant product are based on Article 13(1) of the Framework Act on Product Safety, which provides for the collection, etc. of the pertinent product, when a business operator becomes aware that a serious defect in the product distributed in the market causes or is likely to cause harm to consumers’ lives, bodies, or property. The Defendant submitted a written plan for the collection, etc. of the instant product (Evidence B) to the Director of the National Technical Standards Institute pursuant to Article 14(2) of the Enforcement Decree of the same Act. In such cases, the Director of the National Technical Standards Institute may demand supplementation if it is deemed that the plan submitted by the Defendant pursuant to Article 14(3) of the Enforcement Decree of the same Act is insufficient. However, it does not appear that the Director of the

C) As of February 6, 2017, a plan for the collection, etc. of the product of this case is to seek the method of individually sending text messages to the individual consumers who purchased the product of this case with the cooperation of the mobile network operator or soliciting the exchange on the screen of the product of this case, in light of the fact that as of February 6, 2017, the collection rate of the product of this case in Korea reaches 97% of the product of this case, most consumers who purchased the product of this case in accordance with the Defendant’s call guide as above should have known or could have known the contents of this case.

D) The Defendant clearly announced that, among the content of call guidance, the instant product could be exchanged or refunded from the “store that purchased the instant product.” Even if the place where the instant product could be exchanged or refunded is not the buyer’s residence or living zone, but the place where the instant product was purchased, it appears that most domestic mobile phones could not provide more convenience to buyers, in light of the reality of domestic mobile phone transactions that they purchased mobile phones from a communications company, not the Defendant, a manufacturer. The Plaintiffs pointed out that, on the grounds that there was a procedure for call using a mobile phone in the U.S. land, the call measures in the Republic of Korea were insufficient to the consumers and proceeded mainly with the Defendant’s convenience. However, the selective distribution method has a considerable time to collect and deliver the instant product, and there is a difference in the size of the territory and the surrounding area, so that online purchase cost is high, and that there is a danger of explosion, and that there is a need to be strict measures to treat the instant product as dangerous substances to consumers in other countries.

E) The buyer may choose to exchange or receive refund the instant product with another product manufactured by the Defendant or another company in accordance with the Defendant’s call measures. In the event of choosing refund, the Defendant did not decrease the exchange value of the instant product due to the defect, but rather refunded the product itself for the purchase cost of the instant product. In the event the delivery price of the instant product selected as the subject of exchange is less than that of the instant product, the Defendant would have compensated for the instant product by means of communication cost subsidization. In addition, even if the instant product was damaged due to the negligence on the part of the consumer who purchased the instant product, the Defendant intended to exchange or refund the instant product in accordance with the instant call measures, irrespective of its negligence.

F) The mobile-use coophone, which the Defendant increased to domestic buyers who responded to the call measure, can be used as cash in the online shopping mall exclusive for mobile customers operated by the Defendant. In the shopping mall, the said shopping mall sells 30 products, such as household goods, household appliances, digital, beauty, fashion, fashion, and food, and thus, it can be deemed that there is property value equivalent to the coophone value. Even if there is no need for any product sold at the same time among the buyers who responded to the book, such circumstance alone does not necessarily mean that there is no property value equivalent to the above coophone value.

C. Whether damage was incurred to the plaintiffs

1) In general, in a case where a property right is infringed due to a tort committed by another person, mental suffering shall be deemed to have been recovered from the compensation for such property damage. Thus, in a case where an irrecoverable mental damage was caused by compensation for property damage, this shall be a damage due to special circumstances, and if the perpetrator knew or could have known such circumstances, he/she may claim consolation money for such damage (see, e.g., Supreme Court en banc Decision 2001Da82507, Mar. 18, 2004).

2) As seen above, the occurrence of an accident caused by the Defendant’s breach of the duty of care in the quality management due to the occurrence of the occurrence of an accident from some of the product of the type, such as the purchase by the Plaintiffs. However, even if the aforementioned accident occurred in the product purchased by the Plaintiffs, the Plaintiffs may have caused fears and psychological fears that such accident may occur even during the period when they purchased and possessed the same machine. However, as seen earlier, as seen earlier, the Defendant’s call measures were lawful in order to prevent the recurrence after the occurrence of the chemical accident among the product of the instant case, and the Plaintiffs were paid exchange or refund and incidental compensation as seen above, and the Plaintiffs who did not comply therewith did not respond thereto did not cause any further occurrence according to the continuous charging restriction measure, and thus, the Plaintiffs’ fears and psychological fears claimed by the Plaintiffs were removed.

In addition, the existence of mental suffering can not be observed or verified by a third party, and the degree of the mental suffering is also likely to be in danger of social life to be borne by the victim himself/herself. Therefore, in a case where there is a certain degree of mental suffering, whether to recognize the claim for consolation money in consideration of it as mental damage shall be determined by considering the general legal sentiment and legal consciousness (Seoul High Court Decision 2016Na2065788, August 24, 2018). It is difficult to recognize that it is a mental damage subject to compensation in civil cases immediately in light of the following circumstances even if the plaintiffs temporarily feel unstable or psychological fear before the call measures in this case were taken.

A) The product of this case sold at home and abroad by the Defendant is about 3,060,00 in total, and the product of this case where losses occurred among them is merely about 330,000, and such ratio is merely about 0.01%.

B) Although not only the Defendant’s call guidance but also the Ministry of Trade, Industry and Energy made it reasonable for users of the instant product to actively participate in the call measures for safety, some Plaintiffs, who failed to comply with the instant call measures, did not disclose any reason for the failure to comply with the call.

C) Even if there are buyers who suffered direct loss due to the defect of the instant product, according to the legal principles of compensation for damages under the Civil Act, mental suffering is, in principle, recovered from compensation for property damage, and the perpetrator asserts, prove, and prove that there was any special mental damage which cannot be recovered from compensation for property damage, and claim for the pertinent data can be accepted if the perpetrator knew or could have known such circumstance. It is not the buyer who suffered direct loss but the buyer who was unable to use the instant product due to the measure such as the Plaintiffs, but the buyer who was unable to enter the call measures (as a result, whether he did not respond to the call or not) before entering the call measures, it is not deemed that there was a mental damage requiring monetary compensation.

3) In addition, the buyer is not subject to any limitation on the right to claim compensation for damages on the ground that the call measure was made by the manufacturer. However, it should be said that there was a defect in the call measure itself or there was an additional damage not recovered on the sole basis of the call measure.

The plaintiffs argued to the effect that in the course of responding to the defendant's call, agents, service centers, etc. have to visit or have telephone conversations several times, and if they choose the exchange, they have to consume some time to enter personal information or establish a display system, and they have deprived of economic values that can be gained by holding the product of this case, and that they have suffered losses due to charging restrictions where the plaintiffs did not respond to the defendant's call, due to charging restrictions.

However, as seen earlier, there is no evidence to deem that the Defendant’s call measure was lawful and there was no intention or negligence to constitute a tort under the recall procedure. Moreover, even if the purport of the recall measure based on Article 13(1) of the Framework Act on Product Safety is to protect the lives of citizens and prevent damage to their health and property by reducing damage to a product at the least in the event of danger caused by the product. Considering that the above Act takes into account a defect as “serious defect that may cause death, injury, or disease, fire, or explosion,” and gives the business owner the obligation to take measures such as removal in the event of such defect, it is difficult to deem that the Plaintiffs did not want to exchange or refund the product, or that the Defendant visited the store that purchased the product of this case to receive exchange or refund in accordance with the recall measure of this case, and re-enters personal information on the exchanged product and re-enters personal information on the product, and that the expenses have occurred during a period of time so that the Plaintiffs could not respond to any inevitable measure to protect the Plaintiffs’ health and safety, regardless of any inevitable inconvenience that the Plaintiffs may not respond to the Plaintiffs.

Therefore, insofar as there is no evidence that there was a defect in the call procedure itself or that there was an irrecoverable special mental damage due to a call measure, it is difficult to view that the mere fact that there was a time and economic damage normally in the process of responding to a call measure is a damage that can be compensated on the basis of Article 750 of the Civil Act.

4. Conclusion

Therefore, the plaintiffs' claim of this case should be dismissed due to the lack of reason. Since the plaintiffs newly appointed the designated parties to this court, it is decided as per Disposition by changing the judgment of the court of first instance.

Judges Cho Young-young

Judges Juk-man

2) The defendant did not give accurate guidance to the counselor of the defendant's customer center, and did not specify what is incorrect information that the defendant delivered to the plaintiffs (the plaintiff did not disclose any guidance to the plaintiff and only applied for an order to submit a remote document to the defendant). The defendant did not fully supply alternative products to exchange with the product of this case and caused the plaintiffs to visit the place of exchange several times (the plaintiff must prove the number of times the plaintiff visited or called the defendant's customer center for exchange and refund, but it is doubtful whether the response can be made, even if possible, it does not reveal the cause).

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.