[2] The meaning of an installment contract under Article 2 (1) 2 of the Installment Transactions Act

[2] Installment contract under Article 2 (1) 2 of the Installment Transactions Act refers to an agreement between a credit provider and a seller on a guarantee or assignment of claims and an agreement on the payment of installments between a credit provider and a credit provider and a purchaser in addition to a sales contract on the premise of the existence of a third party, such as a seller, a buyer, and a credit provider. The method of purchasing an object without any contractual relationship between a seller and a credit provider and a credit provider to purchase an object and then redeem the object in installments later is a pure loan contract between a credit provider and a purchaser under a special agreement on installment payments.

1. Regarding ground of appeal No. 1

In Article 70(1) of the Civil Procedure Act, “legal compatibility” means a relationship in which the legal effect of either of the two claims is denied due to the denial of the legal effect of either of the two claims, depending on different evaluations of the same factual relations, or where both claims may not be accepted due to the denial of the legal effect of either of the other claims, or where either of the facts is affirmed or denied by a selective fact-finding that constitutes the cause of the claim, and thereby, the other party’s legal effect is denied or affirmed by denying or affirming the other party’s legal effect. In such a case, it is reasonable to view that the two claims include not only the relationship in which the process of determination of each claim is inevitably combined by affecting the other’s grounds for determination of the other claim, but also the case in which it is not compatible with the legal effect of the other (see Supreme Court Order 2007Ma515, Jun. 26, 2007).

In addition, Articles 67 through 69 of the Civil Procedure Act shall apply mutatis mutandis to preliminary or selective co-litigations under Article 70 of the Civil Procedure Act and the unification of litigation materials and proceedings is required (the main sentence of Article 70(1) of the Civil Procedure Act). However, in light of the proviso of Article 70(1) of the Civil Procedure Act, each co-litigants who waives or recognize a claim, compromise and lawsuit may be co-litigants (the proviso of Article 70(1) of the Civil Procedure Act). In a case where a decision in lieu of conciliation becomes final and conclusive, the decision in lieu of conciliation may become final and conclusive in relation to the co-litigants, in principle, if some co-litigants do not raise any objection to the decision. Provided, That the decision in lieu of conciliation does not allow a separate confirmation, or even if not, if the matters prescribed in the decision are under the premise of forming a common legal relationship among co-litigants, it shall be contrary to equity if it is permitted to allow a separate confirmation in light of the purport of the decision, and if it is contrary to the legislative intent of Article 70(1) of the Civil Procedure Act.

According to the records, under the premise that Defendant Samsung Card Co., Ltd. (hereinafter “Defendant Samsung Card Co., Ltd”) paid the vehicle price to Defendant Samsung Motor Co., Ltd. (hereinafter “Defendant Samsung”), the conjunctive claim of this case is held liable for nonperformance due to the failure to pay the vehicle price, or for employer’s liability for the sale of the Defendant Samsung Motor Co., Ltd., and on the premise that the Defendant Samsung Card did not pay the vehicle price to the Defendant Samsung Motor, it is confirmed that the Defendant Samsung Card Co., Ltd. is not liable for installment payment for the Defendant Samsung Card, and that it seeks the return of the installments already paid. In light of the legal principles as seen earlier, each of the above claims is in a relationship in which the judgment process on each of the above claims has been bound to affect the reasoning of the judgment on the conjunctive claim, and as such, the main claim is not legally compatible, and the conjunctive claim and the opposing party are different, the remainder of the lawsuit against the Defendants except for the consolation money claim constitutes a common co-litigation as provided in Article 70(1) of the Civil Procedure Act.

In addition, according to the judgment of the court below and the records, as of May 18, 2006, the court below made a decision in lieu of conciliation that "(i) Defendant Samsung Card shall pay 8.23 million won to the plaintiff until June 12, 2006. If the above payment is delayed, the damages for delay calculated at the rate of 20% per annum from the date of delay to the date of complete payment shall be paid. (ii) The plaintiff and the defendants shall confirm that there is no claim and liability relationship except for the above paragraph(1). (iii) The court costs and the expenses shall be borne by each party." The copy of the protocol was served on the plaintiff and the defendants on May 29, 2006, and only the defendant Samsung Card did not raise an objection on June 9, 2006, and the plaintiff and the defendant Samsung Samsung Automobile Sales did not raise an objection against the above decision in lieu of the rights and obligations under the Civil Procedure Act, and thus, the above decision does not constitute a conflict between the plaintiff and the defendants's obligation to separate the above payment of the above lawsuit.

In light of the above legal principles, it cannot be said that the court below stated that the decision substituting the conciliation in a preliminary co-litigation under Article 70 (1) of the Civil Procedure Act cannot be separated and confirmed, but it is just to reject the Defendant's Compensation Motor Vehicle Sales's defense of safety, and therefore, the ground of appeal on this part is without merit.

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, it is justified that the court below recognized that the plaintiff entered into the sales contract of this case with the content that the plaintiff would purchase one unit of the vehicle from the sale of the defendant treatment Motor vehicle through the non-party 1, who is an employee of the Cheongju-nam Business Office of the defendant treatment Motor Vehicle Sales, and there is no violation of the rules of evidence as alleged in the grounds of appeal.

3. As to the third ground for appeal

The installment contract under Article 2 (1) 2 of the Installment Transactions Act means an agreement between a credit provider and a credit provider and an installment contract between a credit provider and a credit provider in addition to a sales contract between a seller and a credit provider, on the premise of the existence of a third party, such as a seller, a buyer, and a credit provider, and an agreement between a credit provider and a credit provider, on the payment of an installment between a credit provider and a credit provider, etc. In addition to a sales contract between a seller and a credit provider, without any contractual relationship, a buyer purchases an object of a loan and then makes a repayment of the object of a loan from a credit provider without any contractual relationship between

According to the reasoning of the judgment below, the sales contract of this case is an installment contract under Article 2 (1) 2 of the Installment Transactions Act, and the plaintiff, the purchaser, may refuse to pay the installment to the defendant Samsung Card, the credit provider pursuant to Article 12 (2) and (1) 2 of the same Act, and the plaintiff, the purchaser, at the time of refusal of the installment payment, has the remaining installment payments that the plaintiff did not pay to the defendant Samsung Card (Article 12 (3) of the above Act). Thus, the plaintiff cannot be deemed to have suffered loss on the part because it cannot be said that the plaintiff had the obligation to pay the installment to the defendant Samsung Card. However, since the plaintiff cannot be refunded the amount of eight,28,858 won already paid to the defendant Samsung Card, the plaintiff ordered the defendant Samsung Motor Sales to pay the above installment, while the plaintiff did not confirm that there was any obligation of the plaintiff against the above defendant as to the part which can be refused by the Act on Installment Transactions in the defendant Samsung Card.

However, this measure of the court below cannot be accepted.

First of all, in order to apply the Installment Transactions Act to the instant sales contract as seen earlier, there is a need to make an agreement between the Defendant’s Daewoo Automobile Sales and the Defendant Samsung Card regarding the instant sales contract. Even if based on the factual basis acknowledged by the lower court, it is difficult to deem that there was such an agreement among the Defendants. Moreover, rather, it is difficult to deem that the payment of the vehicle was deposited into the deposit account in the name of Nonparty 2, rather than under the installment financing agreement between the Samsung Heavy Capital and the Defendant’s Daewoo Automobile Sales, and it is not under the said installment financing agreement, but under the installment business agreement between the Samsung Capital and the Defendant Samsung Capital on November 4, 199, and it is reasonable to deem that there was no any contractual relationship between the Defendant’s Daewoo Capital and the Samsung Capital, and therefore, it is not possible to judge that there was no violation of the law regarding the installment transaction in this case’s sales contract by applying the Act on the Installment Transactions, and that there was no violation of the law regarding the payment of damages arising from the payment of the installments and the payment of the installment contract.

In addition, according to the reasoning of the judgment of the court below, the plaintiff did not cancel the sales contract of this case, so it is still possible to claim the delivery of the vehicle for the defendant Samsung Card, and in such a case, it is reasonable to view that the amount of incidental money paid by the plaintiff to the defendant Samsung Card should have been paid as a matter of course to the plaintiff for the payment of the vehicle to be received by the plaintiff, and this cannot be viewed as losses suffered by the plaintiff due to the delay in delivery of the vehicle. Therefore, the court below erred in the misapprehension of legal principles as to damages due to nonperformance of obligation, and the ground of appeal to the same effect is with merit.

4. Therefore, the part of the judgment of the court below excluding the part concerning the defendants' claim for consolation money is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)