2. B

3. C.

4. D;

5. F;

6, G.

7. H;

8. I

9. J;

10. K;

11. L.

13. M;

14.N

1. As to whether this case’s expense apportionment clause is null and void

A. According to the reasoning of the judgment below, the plaintiffs obtained a real estate loan from the defendant and entered into a contract using 8 types of standardized terms and conditions (hereinafter "standard terms and conditions in this case"), such as bank credit transaction terms and conditions, mortgage contract, etc., which the defendant prepared and presented in advance, and the contract contains 50% each of the terms and conditions in the column of 'the principal', 'company (the defendant)', 'the company (the defendant)', 'the bank', 'the 50% each of 'the 50% each' and 'the bank', 'the registration tax, education tax, education tax, national housing bond purchase, certified judicial scrivener, cancellation of mortgage, appraisal fee, etc., and each of them is divided into 'the debtor', 'establisher', and 'the company (the defendant)', 'the bearing of the relevant expenses in accordance with the terms and conditions in each column (hereinafter "the expense burden clause in this case"). The plaintiffs bear it explicitly or implicitly to the purport that they bear the relevant expenses.

Based on its stated reasoning, the lower court determined that the instant cost-bearing clause constitutes an unfair terms and conditions unfairly unfavorable to the Plaintiffs, which are customers, and thus null and void pursuant to Article 6 of the former Regulation of Standardized Contracts Act (amended by Act No. 10169, Mar. 22, 2010; hereinafter “the Act”), and partly accepted the Plaintiffs’ claim for return of unjust enrichment for which the Plaintiffs sought return on the ground that the cost of establishing a right to collateral security, etc. borne by the Plaintiffs under the instant cost-bearing

B. However, it is difficult to accept the above determination by the lower court.

(1) Under Article 6(1) and (2)1 of the Act, in order to be deemed null and void on the ground that the standardized contract clause is a clause unfairly unfavorable to a customer, which is contrary to the principle of trust and good faith. It is insufficient to say that the standardized contract clause is somewhat unfavorable to the customer. It should be recognized that the standardized contract maker abused his/her position in trade, thereby impairing the sound trade order by preparing and using the standardized contract clause contrary to the principle of trust and good faith against the legitimate interests and reasonable expectations of the other party to the contract. In addition, whether the standardized contract clause constitutes “unfairly unfavorable clause to a customer” should be determined by comprehensively taking into account all the circumstances, such as the content and probability of disadvantage that may arise to the customer under the standardized contract, impact on the transaction process between the parties, and regulations on related statutes (see Supreme Court Decision 2013Da214864, Jun. 12, 2014).

(2) In addition to the provisions of the Act, the reasoning of the lower judgment and the evidence duly admitted reveal the following circumstances.

① The standard terms and conditions in this case are the standard terms and conditions approved by the Korea Federation of Banks (hereinafter referred to as the "Korea Federation of Banks") through prior examination by the Fair Trade Commission pursuant to Article 19-2 of the Act around December 2002, and as seen earlier, include the cost-bearing clause in this case.

② On January 1, 2005, the Fair Trade Commission revised the revised standard terms and conditions (hereinafter referred to as the "amended standard terms and conditions of this case") to the effect that it is requested to revise them by consumer organizations, etc., and that it specifically designates and specify the person to be responsible for each expense in advance following the recommendation procedure for the request for examination of standard terms and conditions pursuant to Article 19-2 of the Act. On February 11, 2008, the Korea Federation of Banks and National Bank of Korea issued a license to use them (hereinafter referred to as

③ Under Article 19-2 of the Act, the standardized terms and conditions system provided for in Article 19-2 of the Act, in order to establish a sound trade order and prevent unfair terms and conditions from being widely used, have to prepare and use standard terms and conditions in a certain business area. The Fair Trade Commission’s administrative decision that a request for the use of standardized terms and conditions constitutes unfair terms and conditions, etc., which reflects the economic conditions in a particular business area and the various interests of members and encourage the use thereof, and thereby preventing damages to many customers. The above provisions of the Act stipulate the procedural requirements and legal effects separate from those of Articles 6 through 14 and 17 of the Act, taking into account the purport of the disposition system for the use of standardized

(4) It appears that the Fair Trade Commission revised the cost-bearing clause into the amended standard terms and conditions of this case and recommended the use thereof, in light of the purpose of the standardized terms and conditions of this case, to prevent consumer complaints and disputes, and to establish order in fair trade. In addition, it appears that the Fair Trade Commission made an administrative decision at a level of institutional improvement, taking into account the benefits of promoting customer convenience and promoting competition among financial institutions, by allowing customers to easily choose loan products by saving information search cost and comparing loan interest rates of financial institutions, and by making efforts to reduce loan expense burden into consideration loan expense, and by allowing financial institutions to easily choose loan products. In addition, it appears that it made an administrative decision at the level of institutional improvement, taking into account the benefits of promoting customer convenience and promoting competition among financial institutions. (5) In addition, the former standard terms and conditions before the enforcement of the standardized terms and conditions of this case, prior to the enactment of the standardized terms and conditions of this case, the cost-bearing clause was prepared to protect customer's interest by specifying the opportunity of choice that customers may escape from the total amount of the expense.

Where a financial institution bears expenses incurred in creating a security interest;

In comparison with those, the interest rate on loans and the interest rate on redemption fees can be traded with the contents favorable to the customer.

(3) In light of the aforementioned legal principles, considering the specific contents of the instant clause and the circumstances before and after the amendment of the standard terms and conditions in this case, various circumstances such as the disadvantage and possibility of occurrence that may arise to customers under the instant clause, impact on the transaction process between the parties, and the contents and legislative purport of the provisions of the Act on Unfair Terms and Conditions, etc., the mere fact that the instant clause was abolished and the right to use the amended standard terms and conditions in this case became final and conclusive, it is insufficient to regard the instant clause as constituting “a standardized contract which becomes null and void under Article 6(1) of the Act in violation of the principle of trust and good faith,” and there is no other evidence to acknowledge it differently (see Supreme Court Decision 2013Da214864, Jun. 12, 2014). Nevertheless, the lower court erred by misapprehending the legal principles on the principle of trust and good faith or the principle of invalidation of the standardized terms and conditions, which partially received a claim for the return of unjust enrichment from the Plaintiffs on the ground that the instant clause constitutes an unfair terms and conditions.

2. As to the expiration of the extinctive prescription, a claim arising from an act that constitutes a commercial activity as well as a claim arising from an act that acts in both parties as well as a claim arising from a commercial activity is also a commercial claim to which the period of extinctive prescription of five years under Article 64 of the Commercial Act applies (see Supreme Court Decision 2011Da109500, May 10, 201). Moreover, Article 64 of the Commercial Act shall apply or analogically apply to not only a claim arising from a commercial activity but also a claim corresponding thereto (see Supreme Court Decision 2002Da64957, 64964, Apr. 8, 2003).

Examining the record in accordance with the aforementioned legal doctrine, the claim for return of unjust enrichment in this case, which the Plaintiffs seek, is arising from the occurrence of expenditure based on the terms and conditions of the mortgage contract concerning the burden of expenses among the contract to be entered into by the Defendant for business, such as loan transaction, and may be deemed to have been created based on the loan transaction agreement which constitutes commercial activity. In light of the background leading up to the occurrence of the claim and the cause thereof, etc., it is necessary to promptly resolve the transaction relationship accordingly. Therefore, it is reasonable to deem that Article 64 of the Commercial Act is applicable during the period of extinctive prescription to be put on five years (see Supreme Court Decision 2013Da214871, Jul. 24,

Nevertheless, the lower court determined that the extinctive prescription period of the instant claim for return of unjust enrichment was ten years pursuant to Article 162(1) of the Civil Act on the ground that the Plaintiffs’ seeking the return of the cost of establishing a right to collateral security cannot be deemed necessary to promptly resolve the same level as commercial transaction relation. In so doing, the lower court erred by misapprehending the legal doctrine on the extinctive prescription

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-tae

Chief Justice Cho Jae-hee