Yeonsu-gu Incheon Yeonsu-dong 0

Law Firm Jin-Myeon, Counsel for the plaintiff-appellant

[Defendant-Appellee]

Seoul Yangcheon-gu New-dong 0

○○○

Attorney Han Ji-gu and Kang Jin-gu, Counsel for the plaintiff-appellant

2. The plaintiff's appeal and the conjunctive claim are dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

A. The defendant is primarily responsible for the plaintiff's KRW 55,928,890 and the above money, and two million won.

For KRW 38,96, and KRW 00 from July 23, 2011, KRW 2,986, and KRW 578

From August 30, 2011, 2, 986, and 578 won: from September 29, 2011, 2, 986, and 578 won

For 2, 986, 578 won from October 29, 2011 to October 29, 201, 2, 986, and 578 won

From December 29, 2011 to the service date of a copy of each complaint of this case, 6% per annum and full payment from the following day shall be made.

By the day, 20% interest per annum shall be paid.

B. Preliminary, the Defendant: (a) 201-type ○○ (O) 740LI car (Korean color B90) on the Plaintiff.

Sopsto grey briant mal, and hand over the above vehicle to the Plaintiff.

prior to July 22, 2011, the procedures for the registration of the transfer of ownership of a motor vehicle in the name of the plaintiff for sale and purchase

D. D. D. D.

2. Purport of appeal

A. The plaintiff;

In the judgment of the court of first instance, the part against the plaintiff falling under the order to pay below

C. As to the Plaintiff KRW 2 million out of KRW 5,928,890, the Defendant began on July 23, 2011:

38, 996, 00 won from July 29, 201, 2, 986, and 578 won from August 30, 201,

2, 986, 578 won from September 29, 2011, 2, 986, and 578 won from October 29, 2011:

2, 986, 578 won from November 29, 2011, 2, 986, and 578 won from December 29, 2011

The amount of money calculated at the rate of 1% per annum until the delivery date of a duplicate of each complaint of this case shall be paid.

B. Defendant

In the judgment of the court of first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the above revocation

The dismissal is dismissed.

A. On July 22, 2011, the Plaintiff entered into a sales contract with the Defendant (hereinafter referred to as “instant sales contract”) to purchase 1,222, and 2,400,000 won for a vehicle with 201-type ○○○ 740Li (a color 290 Splosto greybriant) (hereinafter referred to as “the instant vehicle”). On August 2, 2011, the Plaintiff was handed over by the Defendant as indicated in the attached list (hereinafter referred to as “the instant vehicle”).

B. On July 28, 2011, the Plaintiff entered into a contract for installment financing with Nonparty ○○ Korea Co., Ltd. (hereinafter “Nonindicted Company”) by setting the contract term of 36 months, the amount of loan application KRW 91,132,363, monthly payment of KRW 2,986,578.

C. The Plaintiff paid the Defendant a down payment of KRW 2 million on July 2, 2011, and KRW 38,96,000 on July 28, 201, respectively. The Plaintiff paid KRW 28,986,578 on August 29, 201 to the non-party company as the installment for vehicles, and paid KRW 2,986,578 each month from September 28, 201 to December 28, 2011.

D. On September 8, 2011, the instant motor vehicle was repaired at the Defendant’s Incheon Service Branch (614mm) due to the malfunction of engine warnings, etc. on September 8, 201. (2) The Plaintiff’s Kim○, from around September 12, 2011, confirmed the speed of the instant motor vehicle from around September 12, 201, that the Plaintiff was towing the instant motor vehicle at the point of Incheon 25 to 35m in order to speed up; (3) caused a sudden shock of the speed of the instant motor vehicle at the point of time, at the point of 25 to 35km; and (4) the symptoms continued, upon the occurrence of the symptoms, received the instant motor vehicle from the ○○ Emergency Transmission Service Center on September 23, 2011; and (4) the Plaintiff’s rapid change of the instant motor vehicle from the point of time to September 26, 2011 to the point of view of Incheon 201m of time repair.

4) On October 3, 201, 201, Kim○○, while driving the instant vehicle in Daejeon, deemed it difficult to operate the instant vehicle any more severe speed than the previous one, and parked it in the nearby parking lot, and confirmed that the instant vehicle was towed to the Incheon Services Center through the ○○ Emergency Call Service Center (1,548m of odometer), and the Incheon Services Center re-checked the occurrence of the speed of change as a result of the instant vehicle inspection.

5) On October 7, 2011, the Incheon Service Branch explained that it is necessary to exchange the entire automatic transmission period of the instant vehicle to the Plaintiff.

6) On October 11, 2011, the Plaintiff sent his opinion to the Defendant that it would want to repair without exchanging the automatic transmission system, and the Incheon Service Branch instructed the Plaintiff to replace the automatic transmission system again on October 14, 201 after conducting an inspection with the ○○ Korea Technology Support Team.

E. The Plaintiff rejected the Defendant’s proposal to replace the entire automatic transmission period, and filed the instant lawsuit on January 10, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Gap evidence 2-5, Gap evidence 6-1, 2-7, Gap evidence 7-1 through 7, Gap evidence 8, and 12, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff’s assertion 1) The Plaintiff’s transmission of the power generated from the engine by changing it to the necessary power at a speed, and takes charge of a very important role among several parts of the automobile. In the event of a defect in the operation of the engine, it makes the normal operation of the vehicle impossible and causes a fatal problem to safety. Therefore, the defect that has a shock in the body is an important defect that makes it impossible to achieve the purpose of the instant sales contract. Therefore, the Plaintiff’s primary claim to cancel the instant sales contract and to recover the price and statutory interest paid to the Defendant. (2) The instant automobile, which is the subject of the instant sales contract, falls under the category of the instant automobile, and falls under the instant automobile, and the Plaintiff, the buyer, regardless of whether the purpose of the contract can be achieved due to the defect pursuant to Article 581(2) of the Civil Act, may request the Defendant to transfer the automobile without any defect (the so-called “the preliminary buyer’s claim for delivery of the automobile).

나. 피고의 주장1 ) 원고가 주장하는 변속충격의 하자는 일반적인 무상보증수리로 충분히 정비가 가능한 하자일 뿐이다. 즉, 이 사건 자동차는 주행속도 시속 20 ~ 25㎞로 운행하면서 감속하는 경우에 자동변속기의 기어가 3단에서 2단으로 변속되면서 미세한 충격이 발생하는 하자가 있는데, 그 정도는 주행모드에서 운전석 시트를 " 툭 " 하고 건드리는 정도의 변속충격일 뿐, 원고가 주장하듯이 " 쿵 " 하는 정도의 심한 충격은 아니다. 그리고 이러한 하자는 무상보증수리의 범위 내에서 변속기의 프로그램 수정 또는 변속기 내부의 부품교체, 변속기 교체 등 단계적인 수리방법으로 충분히 해결할 수 있다 . 2 ) 또한, 민법 제580조 제1항, 제575조 제1항에서 말하는 ' 계약의 목적을 달성할 수 없는 경우 ' 란 자동차의 경우 아무리 정비를 시도해도 그 정비가 불가능한 경우를 말한다 할 것인데, 이 사건 자동차의 경우 위와 같은 수리과정을 통해 충분히 수리 가능한 하자여서 계약의 목적을 달성할 수 없는 경우에는 해당하지 않는다 . 3 ) 완전물 급부청구권의 경우에도 이 사건 자동차에 존재하는 하자의 정도가 경미하거나 또는 매도인인 피고에게 지나친 불이익을 초래하는 경우에 해당하여 인정될 수 없다. 특히, 이 사건 자동차와 같이 출시 · 등록과 동시에 차량의 가격이 급격히 하락하는 제품의 경우 완전물 급부청구권을 쉽게 인정하면 매도인에게 지나치게 큰 불이익을 초래할 수 있다 .

4) The Plaintiff’s primary and conjunctive claims are related to the return of the instant vehicle and its simultaneous performance.

3. Judgment on the primary claim (claim for Cancellation of Contract)

A. Requirements for cancellation of a contract

Article 581(1) of the Civil Act provides that even if an object of sale is designated as a kind of object, if any defect occurs in a specified object thereafter, the provisions of the preceding Article shall apply mutatis mutandis; and Article 580(1) of the Civil Act provides that if a defect occurs in the object of sale, the provisions of Article 575(1) shall apply mutatis mutandis: Provided, That this shall not apply in cases where the buyer knew or was negligent in knowledge that the defect occurred, or he was negligent in his knowledge of it, and Article 575(1) of the Civil Act provides that "if the object of sale becomes an object of superficies, servitude, chonsegwon, chonsegwon, right of retention, or lien, the buyer may rescind the contract only if the buyer was unaware of it." In other cases, only damages may be claimed if the plaintiff could not achieve the purpose of the contract.

B. Whether there is a defect in the instant motor vehicle

1) A manufacturer who manufactures and sells goods is liable to manufacture the goods with stability and durability within the expected range in light of modern technological level and economic feasibility in light of the structure, quality, and performance of the goods. If the goods fail to meet such normal quality, performance, and durability, it shall be deemed a defect or defect required in the seller’s warranty liability under the Civil Act (see Supreme Court Decision 92Da18139 delivered on November 24, 1992, etc.).

On August 2, 2011, the Plaintiff suspended the operation of the instant motor vehicle from September 12, 201 after receiving the instant motor vehicle from September 12, 201, due to the change of speed, and on October 3, 2011, the mileage of the instant motor vehicle was limited to 1,146km at the time of the initial change of speed. The Defendant’s Incheon Services Branch expressed its opinion that the instant motor vehicle requires the replacement of the automatic change of speed in order to solve the change of speed. As seen above, the Defendant’s opinion that the instant motor vehicle’s automatic change of speed is necessary for the assessment result of the first instance appraiser instruction, “on the speed of the motor vehicle at the time of the reduction of speed” is a device to control automatic change of speed pressure in the automatic change of pressure (the valve change), and it is difficult to recognize the change of speed or pressure of the instant motor vehicle due to the change of speed in the automatic change of speed, etc., and it is difficult to recognize the change of the automatic change of pressure in the instant motor vehicle.

2) Meanwhile, in light of the developments leading up to the instant sales contract and the sales price, etc., in full view of all the circumstances revealed in the arguments, such as the fact that the instant automobile was the main parts of the automobile, and even based on the appraisal result by the said appraiser, the speed of the instant automobile was not so small that it would have not been accepted, but a serious part of the instant automobile, and that the speed of the shock that occurred intermittently may cause a higher stress to the driver (i.e., Kim○ in Daejeon, on October 3, 2011, when the speed of the instant automobile would have occurred, he suspended the operation of the instant automobile and ordered the instant automobile to be towed to the Defendant’s point of Incheon through the emergency exit service). In light of the developments leading up to the instant sales contract and the sales price, etc., the defect of the instant automobile would have been directly affected the operation of the automobile.

C. Whether the purpose of the instant sales contract is achieved

In general, a significant defect would have a negative impact on the achievement of the purpose of the contract, and such negative impact would be reduced if it is a minor defect, but the meaning that the purpose of the contract cannot be achieved due to the defect refers to a case where the buyer is unable to use or take profit from the object in compliance with the intended purpose. Although the defect is serious, if it is possible to repair it easily or insufficiently, the objective of the contract can be achieved easily, so it can not be readily concluded that it is a serious defect that it can not achieve the purpose of the contract, and it cannot be concluded that it can not achieve the purpose of the contract due to the defect."

(2) The case holding that since the above-mentioned evidence and evidence were adopted as mentioned above 7, Eul evidence No. 8-1 to 14, and the purport of the whole oral argument is added to the testimony of the witness of the trial party, it is general to acknowledge the whole of the above-mentioned repairs without any special reasons that the alteration of the automobile of this case is changing from three parts to two parts, and it is difficult to recognize the alteration of the automobile of this case as follows: ① The alteration of the speed of the automobile of this case is changing from the automatic speed to two parts, and it does not directly affect the safety of the automobile of this case, ② The alteration of the speed of the automobile of this case does not directly affect the start of the automobile of this case and the suspension of the vehicle of this case; ② the alteration of the automatic speed of the automobile of this case is changed, or the alteration of the vehicle of this case to 70,000 won and the alteration of the whole quantity of the automobile of this case to 100,000 won and the alteration of the defect of this case to 700,07,07,000,00,00,0 won,0.

4. Determination as to the conjunctive claim (the right to claim for full payment)

(a)the requirements for claims for reimbursement of complete products;

Article 581 (2) of the Civil Code provides that in the case of the preceding paragraph, the buyer may claim the defective goods without the cancellation of the contract or the claim for damages, and in the sale of the tangible goods, the buyer has the right to claim the defective goods instead of the cancellation of the contract or the claim for damages (hereinafter referred to as the "the claim for the payment of the defective goods"), and there is no limit in exercising the right to claim the payment of the defective goods under the explicit provisions.

However, in light of the fact that the basis for recognizing the seller's warranty is to maintain the simplification of a commercial contract called a sale, the exercise of the seller's warranty right can be restricted by the principle of good faith or the general principle of prohibition of abuse of rights in the case where it is proved that the seller's claim for the payment of the full-scale goods is not considered in light of the seriousness of the defect or the disadvantage of the seller that may be caused by the exchange of the goods for sale on the basis of the defect.

In the end, the restriction on the exercise of the right to claim payment of the complete object is to be limited to cases where there are special circumstances that may result in abuse of rights against the principle of equity or the principle of good faith in exercising the right to claim payment of the complete object, even though the defect of the object is insignificant and there is no obstacle to accomplishing the purpose of the contract, and it is possible to provide a remedy for the buyer at a low cost through compensation for damages or repair of the defect. However, the burden of the duty to claim payment of the complete object may be imposed on the seller, and the seller is excessively heavy and harsh, and the exercise of the right to claim payment of the complete object may result in abuse of rights against the principle of equity or the principle of good faith.

B. The fact that there is a defect in the instant motor vehicle is recognized as above, and the Defendant has the duty to deliver to the Plaintiff the motor vehicle without the same kind of defect, barring any special circumstance, and we examine whether to recognize the exchange of the motor vehicle without any defect in light of the above legal principles.

The case holding that since Gap evidence Nos. 8 and Eul evidence Nos. 8-1 through 14 show the overall purport of the pleading, ① since the time of delivery to the plaintiff, the defect in the speed of change occurred while operating about about 1,146 km of the odometer from Sep. 12, 2011 to Sep. 12, 2011, the automobile of this case was already defective at the time of delivery or at least about 1,146 km of the defect, it cannot be evaluated as the same value as the exchange value of the automobile without such defect; ② In the case of high-priced imported automobile with a low exchange value immediately after delivery of the automobile of this case, if it is extremely limited to the exercise of consumer's complete payment by simply comparing the repair cost, the entire defect in this case's exercise of the right can not be found to be changed from 50 km of the vehicle, even if it is extremely limited to the replacement of the vehicle of this case from 2010 to 2012.

Meanwhile, the following circumstances, which are acknowledged by comprehensively considering Gap evidence 3, Eul evidence 6-1, 2, and Eul evidence 6-1, 9-1, 2, and Eul evidence 9, and the purport of the whole oral argument in the testimony of the witness witness of the appellate trial, i.e., the change of speed of the automobile of this case, which does not directly affect the safety of the automobile (not likely to occur during driving). ② The defect of this case can be repaired by replacing the whole speed, and its repair cost is about 7,90,000 won, and its repair cost is about 7,00,000 won, but there is no need for the plaintiff to pay separate expenses due to the application of free repair. ③ The fact that, in the case of the same kind of automobile with the change of speed or whole changed with the change of speed of defect like the automobile of this case from 2010 to 2012, the sale price of the automobile of this case shall be 10,2400,000 won,000 won,000 won,00 won.

17. According to the Consumer Damage Compensation Rules (No. 2007 - 54 of the notification of the Ministry of Finance and Economy) amended its name to the Consumer Dispute Resolution Criteria, and pursuant to the Consumer Dispute Resolution Criteria (Fair Trade Commission Notice No. 2011 - 10) established upon delegation by the Fair Trade Commission, the provision provides that the exchange of products or the purchase price refund shall be avoided if at least two serious defects are incurred in relation to driving and safety, etc. within one month from the date of delivery of the vehicle (within the warranty period) and that the provision provides that the compensation or free repair, vehicle exchange, or the purchase price refund shall be granted if any defect has already occurred at the time of delivery of the vehicle. However, in the case of the instant vehicle, it is difficult to view that the instant defect was a serious defect in the safety level, etc. after about 40 days from the delivery to the Plaintiff, and as seen earlier, even if the said defect had already been inherent in the vehicle at the time of delivery, it is in accordance with the degree of such defect.

Since the solution criteria are different as above, it is difficult to deem the above defects to be subject to vehicle exchange; 8 in the sale of general kinds of goods, a seller would normally be liable for damages to the extent of deducting the exchange value of the defective goods from the exchange value of the defective goods in the case of the sale of the goods without the defect. However, in the case of this case, in addition to the above damages, there are additional damages such as the registration tax necessary for the new registration, the new car procurement cost, etc. imported from Germany, and the defect of this case is relatively easily cured.

In full view of the fact that it is difficult to see that the defect resulted in an obstacle to the achievement of the purpose of the instant sales contract, the exercise of the Plaintiff’s right to claim the payment of the full goods against the Defendant constitutes a case where the buyer unilaterally causes considerable and significant damage to the seller, even though there is no separate utility due to the exchange payment of the full goods, to the extent that it is against the principle of fairness or the principle of proportionality.

Therefore, the plaintiff's exercise of the right to benefit is in accordance with the principle of good faith or prohibition of abuse of rights.

Therefore, the plaintiff's conjunctive assertion is without merit.

5. Conclusion

Therefore, the plaintiff's main claim and conjunctive claim are dismissed as they are without merit. Since the part against the defendant as to the main claim in the judgment of the court of first instance against the defendant is unfair with different conclusions, the defendant's appeal is accepted and the plaintiff's main claim corresponding to the above revoked part is dismissed, and the plaintiff's appeal as to the main claim and conjunctive claim are dismissed as they are without merit. It is so decided as per Disposition.

Judges or higher-ranking judges;

Judges Choi Jae-won