[2] The meaning of the principle of good faith and the requirements for denying the exercise of rights on the grounds of violation of this principle

[3] In a case where Gap corporation, a mobile telephone service provider, has a duty to provide Eul corporation with access to the method requested by Eul pursuant to the agreement entered into with Eul corporation, a wire telephone service provider, and allow Eul corporation to use its own access facilities to the minimum extent, and thus, Eul corporation requested access without Gap corporation's refusal, and requested Eul corporation to pay additional connection call charges, the case holding that granting Eul's claim is not reasonable in light of the principle of good faith

[4] Where the meaning of a person who made an expression of intent is different from that of the other party, the method of interpreting the declaration of intention

[5] The purport of the provision of Article 496 of the Civil Act and whether this provision applies to an offset against damages claim arising from an intentional default (negative in principle)

[2] The principle of trust and good faith is an abstract norm that a party to a legal relationship should not exercise his/her right or perform his/her duty in a manner that is contrary to equity or trust in consideration of the other party’s interest. In order to deny the exercise of right on the ground that it violates the principle of trust and good faith, there must be a justifiable state in which the other party provided trust to the other party, or the other party objectively deemed trust, and exercising his/her right against such other party’s trust should reach the extent that it is not acceptable

[3] The case holding that in a case where Gap corporation, a mobile telephone operator, has a duty to provide Eul corporation with access to the method requested by Eul corporation pursuant to the agreement concluded with Eul corporation, a wire telephone operator, and allow Eul corporation to use his own access facilities to the minimum extent, and thus, it is not reasonable in light of the principle of good faith to allow Eul corporation to claim compensation for damages equivalent to the same amount on the ground of Gap corporation's refusal, in a case where Eul corporation, a mobile telephone operator, has a duty to refuse to provide access to the method requested by Eul corporation pursuant to the agreement with Eul corporation, but Eul corporation had Eul corporation access to the method requested by Eul without Gap corporation's refusal, and allow Eul corporation to return access facilities to Eul by the method requested by Eul even after it had been provided with access in the manner requested by Eul corporation without Gap corporation's refusal.

[4] If the parties are clearly aware of their common intentions, such declaration of intent shall be interpreted according to the common perception of the parties, even if it is different from the language indicated by the parties. However, if the meaning of the person who made the declaration is different from that of the other party, it shall be objectively and objectively interpreted by considering how the other party who received the declaration of intent can have understood the content indicated if it is reasonable.

[5] Article 496 of the Civil Act provides, “If the obligation is due to an intentional tort, the obligor cannot set up against the obligee a set-off.” If set-off is granted for the damage claim caused by an intentional tort, even the person who committed the intentional tort would not be required to pay damages in reality by the set-off right. In addition, the victim’s intentional tort would not be able to receive actual repayment due to the tortfeasor’s exercise of the set-off right does not accord with the concept of social justice. Therefore, the purport of this provision is to prevent the occurrence of intentional tort, as well as to enable the victim to obtain actual repayment due to the intentional tort.

This provision is applicable to an offset against damage liability arising from an intentional tort, and it does not apply to damage liability arising from an intentional default. However, if an intentional act concurrently constitutes a tort and at the same time the damage liability arising from an intentional default competes with the damage liability arising from an intentional default, this provision needs to be analogically applied. In such a case, permission for offset against damage liability arising from an intentional default would extinguish even when the damage liability arising from an intentional tort would be extinguished, and the legislative purport of this provision would be dismissed. Therefore, in such exceptional cases, Article 496 of the Civil Act shall be analogically applied to the obligor’s set-off against the damage liability arising from an intentional default.

1. Basic factual basis

According to the reasoning of the lower judgment and the record, the following facts are revealed.

A. (1) The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) who is a mobile phone operator need to connect each other’s communications network (the composition of the Plaintiff’s mobile network and the Defendant’s mobile network is as follows) in a case where a user who has subscribed to the other party’s communications service calls to a user who has subscribed to the other party’s communications service. As such, the physical, electrical, and functional link of telecommunications equipment to enable the provision of telecommunications services between communications networks is called “connection.”

A person shall be appointed.

The type of connection is divided into LM 2G calls, LM 3G calls, VM 2G calls, and VM 3G calls, etc. depending on whether the user, who has joined the Defendant’s telecommunications services, calls the user, calls the user who has joined the Plaintiff’s telecommunications services, and calls the user who has joined the Plaintiff’s telecommunications services (including call; referring to call call from the phone to the phone to the mobile phone to the mobile phone). This is again divided into LM 2G calls, LM 3G calls, VM 2G calls, and VM 3G calls, etc.

(2) When an excursion telephone policyholder calls a mobile user, it is generally used as a connection method linking a mobile operator’s communication network and a mobile operator’s communication network (Internet phones are linked to mobile phones in the same way as that of wire phones, and most of the contents below are also applied to online telephones).

“CGS method” connects a mobile phone operator to a mobile relay exchangeer (hereinafter “CGS”) located in the same area at his/her transit and exchange unit (hereinafter “CGS”), and connects a mobile phone operator to a mobile terminal (hereinafter “HLR”) through his/her subscriber location recognition device (hereinafter “HLR”), and then directly connects the call from the CGS to a mobile station (where the mobile phone user is located in the same area) or through the CGS in another area (where the mobile phone user is located in another area), which is the nearest to the location of the mobile phone user (hereinafter “SC”), and then connects the call to a mobile terminal via the base station (where the mobile phone user is used to move through a vehicle, etc.), the mobile phone operator connects the call to the mobile terminal through the base station.

The term "mC method" means a connection method by which an excursion telephone service provider directly connects the mobile telephone service provider's HLR to its transit exchangeer, being provided the location information of the mobile user and connects the call to its transit exchangeer, which is the nearest to the mobile user, and promptly connects the call to mC by the mobile user, which is the most nearest to the mobile user's location without going through the CGS of the mobile user (the same shall apply to the CGS method to connect the call from mC to the mobile terminal via the base station and to connect the call to another mC by the mobile user's movement).

(3) In the case of LM 2G and VM 2G calls, the Defendant: (a) connected the Plaintiff’s call from the start date of each service to September 29, 201 (hereinafter “2G mobile calls”) to the mobile base exchange station (hereinafter “3G mobile calls”) for the Plaintiff’s two household mobile service from the start date of each service to September 29, 2011; (b) again, the Defendant asked the Plaintiff of the location of the mobile phone subscribers to the Plaintiff’s HLR, but at this stage, connects the Plaintiff’s twoG mobile calls located most nearest; and (c) connects the Plaintiff’s CGS (if the Plaintiff is in a different area, the Plaintiff’s mobile phone calls are connected to another area; and (d) connects the mobile base to the mobile base to the mobile base (hereinafter “3G mobile calls”) through the 3G mobile call calls to the 3G mobile base calls to the 3G mobile phone calls to the 3G mobile network calls to the 3G mobile call.

B. (1) A business operator using another business operator’s communications network (hereinafter “connection”) must pay connection call charges, in detail, to a business operator providing a communications network (hereinafter “connection service provider”) for the use of the communications network and connection facilities constituting the communications network.

The connection call charges are prescribed in Article 39 of the Agreement for Interconnection, etc. between the Telephone Network of KT and the Mobile Network of SK Telecom Co., Ltd. (hereinafter “Interconnection Agreement”) and Article 22(1) of the former Telecommunications Business Act (wholly amended by Act No. 10166, Mar. 22, 2010; hereinafter “former Telecommunications Business Act”) based on the interconnection standards for telecommunications equipment and facilities (Article 209-27 of the Korea Communications Commission Notice No. 2009-5, Nov. 5, 2009; hereinafter “Interconnection Standards. Article 4 of the Interconnection Agreement provides that matters not stipulated in the Agreement shall be determined by the Interconnection Standards, etc.). Accordingly, the connection call charges shall be calculated by the mode of “connection rate by connection facility x connection call volume.”

(2) As the cost of connection, the connection call rate shall be calculated and notified by the Korea Communications Commission for each connection facility and each business entity on the basis of the cost of the connection facility (Article 40 of the Interconnection Agreement, and Article 22(2) of the Interconnection Criteria). Specifically, the connection call rate shall be calculated on the basis of the cost of the connection facility and the cost of the connection facility for the past (Y-2) year (=the cost of the connection facility ± the amount of the connection facility ± the amount of the telephone (the within the network and the amount of the connection call)) and the cost necessary for the construction and operation of the communications network to efficiently accommodate the predicted and efficient amount of the five years thereafter, taking into account all the policy factors such as the characteristics of the connection facility, the difference in the size of the telephone, the environment and competition situation of the communications market, the connection call rate for the year and Y+1 year. Moreover, the connection call rate is not determined upon the occurrence of omission of the connection call rate after the connection rate has been determined or changes in the number of calls already determined in advance.

(3) The connection call volume is calculated by adding the frequency of use of connection facilities to the occupied time of the communications network (Articles 23(4) and 24 of the Interconnection Standards), and Article 24(1) and (3) of the Interconnection Standards at issue in this case provide that:

(1) The amount of telephone call for calculation and settlement of connection call charges shall be calculated for each facility, such as exchange, transmission, and line (in the case of internal, external, international, and mobile telephones, it shall be classified by section) by adding the number of times of use of communications network facilities.

(3) Where it is difficult to calculate the frequency of use of communications network facilities pursuant to paragraph (1), the frequency of use of each facility of the mobile telephone network for telephone calls and connection calls within the mobile network shall be estimated through a sample survey, but the frequency of use before a sample survey shall be as follows:

1. Exchange facilities: Domestic communications networks and connection calls 2.

2. Transmission and line facilities between exchange stations: Domestic communications networks and connection calls 1.

3. A base station-related transmission and line facilities: A telephone call 2, connected call 1.

Here, “exchange facility: Connection call 2” referred to in subparagraph 1 means that, for connection calls, the exchange facility, i.e., cGS and mC, are deemed to be used once each, and “connection call 1” referred to in subparagraph 2 means that, for connection calls, the line between CGS and mC (hereinafter “intermodal”) is deemed to be used once, and “base station-related transmission and line facilities: Connection call 1” referred to in subparagraph 3 means that, for connection calls, the line connected to the base station (hereinafter “base station-related”) is deemed to be used once.

However, as seen above, in the case of mobile communications networks, it is difficult to calculate the number of actual usage of CGS, mC, exchange stations and base stations depending on the location and transfer of mobile phone subscribers, but it is difficult to calculate the number of actual usage of CGS, mC, exchange stations, and base stations. In fact, as no sample survey is conducted, the call amount has been calculated by applying the deemed number of usage under each subparagraph of Article 24(3) of the Interconnection

With respect to the Plaintiff’s mobile network, the Korea Communications Commission classified connection facilities into CGS, HLR, mC, base stations, and radio wave usage fees, and announced so-called CGS rates and mC rates at the time of calculating and notifying the connection call rates for each connection facility. The said rates are simply a sum of the connection call rates for each Plaintiff’s connection facility used for cGS and mC connection. Therefore, notwithstanding each subparagraph of Article 24(3) of the Interconnection Standards, in the case of mC, which does not use the connection between cGS among the connection facilities, the frequency of “0 times” is applied to each of cGS and the exchange stations, respectively.

C. (1) The Plaintiff and the Defendant launched LM 2G calls at the first half of 2001, and concluded the Interconnection Agreement on December 26, 2003, and commenced LM 3G calls on December 29, 2003 (the demonstration connection was commercialized as of December 29, 2003 after the demonstration connection by the first half of 2G mobile connection). From January 2006, VM 2G and VM 3G calls began. Since the Internet telephone was linked to the Plaintiff’s mobile communications network through the Defendant’s wire communications network, VM 2G calls were connected to the Plaintiff’s mobile communications network by the same method as LM 2G, and VM 3G calls were connected to the Plaintiff’s mobile communications network by the same method as LM 3G calls.

(2) The Defendant settled the connection call charges by applying the cC rates to not only the LM 2G calls connected not only to 2G calls, but also the LM 3G calls connected by 2G calls (a settlement was made for VM 2G and VM 3G calls at the CGS rates from the beginning of the communication on January 14, 2006). The Plaintiff demanded a financial calculation of connection call charges on the grounds that LM 3G calls do not connect by mC, following internal review, the Defendant requested the Plaintiff on September 21, 2007 to provide information for confirmation of the connection route of 3G calls, and on October 1, 2007, the Defendant settled the connection call charges by applying the CGS rates.

On June 2, 2008, the Defendant requested the Plaintiff to provide 3G calls with the relevant information and requested the provision of information (VM 3G calls were connected by the same method as LM 3G calls, which also applies to VM 3G calls). However, on September 29, 2009, the Plaintiff did not comply with the Defendant’s request by asserting that the Plaintiff did not have any obligation to provide mc connection with 3G calls. On April 9, 2009, the Defendant filed an application for a ruling seeking mc connection with 3G calls with the Korea Communications Commission. On November 18, 2009, the Korea Communications Commission rendered a ruling to the effect that “the Plaintiff is obliged to provide 3G calls to the Defendant with mc connection in accordance with the Interconnection Agreement,” and around September 29, 2009, the Plaintiff and the Defendant completed the work for 3G calls and 3G calls calls.

D. The Plaintiff, as its principal lawsuit, has access to LM 3G and VM 3G calls by 2G mobile connection, and requested confirmation of the absence of an additional connection call charges for the connection facilities used additionally from February 1, 2004 to December 31, 2010 (in fact, a claim under an interconnection agreement, a claim based on a conjunctive tort) and a claim for confirmation of the absence of an obligation to compensate for damages related to counter-action. Accordingly, if the Plaintiff, as a counter-claim, has the obligation to provide mC connection for LM 3G and VM 3G calls, and fulfilled this obligation, only the connection call charges are paid at mC rates in relation to these subparagraphs. If the Plaintiff failed to perform its obligation and paid the connection call charges at 2GGGGS rates from January 1, 2008 to December 1, 2010, the difference between the former and the connection call charges as a summary of the damages claim.

2. Judgment on the grounds of appeal as to the principal lawsuit

A. Whether the obligation to pay additional connection call charges arises, compared to the case of connection by CGS in the case of connection by 2G mpway connection method

(1) As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable counter-proof as to the denial of the contents stated therein. Where the parties dispute over the interpretation of a contract and the interpretation of the parties’ intent expressed in the disposal document becomes an issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the content of the language and text, motive and background of the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decisions 2002Da23482, Jun. 28, 2002; 2014Da8543, 88550, Oct. 27, 2016).

(2) As seen above 1. As the connection call fee is calculated by multiplying the connection call rate for each connection facility by the number of connection calls, and the connection call amount is calculated by multiplying the occupancy time of each connection facility by the number of connection calls. In addition, in the case of a mobile communications network, it is difficult to calculate the actual number of connection facilities, so that each subparagraph of Article 24(3) of the Interconnection Standards applies the deemed number of use of connection facilities. However, the above provision is deemed one time among the connection facilities, under the premise of the connection with the CGS method, the minimum number of use of each connection facility can be deemed to be determined by deeming the number of use of each connection facility, under the premise of the case of connection with the CGS method. Accordingly, in the event that part of the connection facilities are not used by the CGS method, the number of use of the connection facilities should not be deemed to be more than 0 times, notwithstanding the foregoing provision, if the number of use of the facilities exceeds the “number of use” under the above provision.

On the other hand, the Defendant has settled connection call rates by applying the CGS rates to LM 3G and VM 3G calls. Accordingly, connection call rates have been calculated based on the number of times used in connection with CGS, mC, exchange stations and base stations. However, the above other frequency of use at the time of settlement of connection call rates cannot be applied. Of course, connection call rates shall be calculated to ensure fair sharing of connection cost between connectionr and connection user. However, at the time of calculation of connection call rates, the connection call rates are calculated based on the previous volume of telephone, and the connection call rates are different from the beginning at the time of settlement of connection call rates in addition to such estimated amount of telephone rates. Accordingly, connection call rates are not paid by connectionr. In addition, after the connection call rates are determined, the connection call rates are not determined based on the current frequency of use of connection call rates and the current frequency of use of the connection call, which is determined based on the changes in the connection call rates and the current frequency of use of the connection call.

In the case of LM 3G and VM 3G calls, the Defendant used 2G mpway connection. Accordingly, each of the above calls was connected from the Defendant’s transit exchange to the Plaintiff’s CGS via the Plaintiff’s HLR, 2G mC, and inter-country (2G mC and CGS) and thereafter connects to the mobile phone terminal in the same way as the CGS method. Since it is difficult to calculate the actual usage number due to the difference in the usage number of each connection facility depending on the location or movement of the mobile user, each of the connection facilities after the connection to the sections is made by the CGS, it is difficult to calculate the actual usage number, and thus, the deemed usage number, which is the minimum usage number, of each connection facility, should be applied. However, as seen earlier, as regards the sections before the connection to the sections to the CGS, the actual usage number is clear, and therefore, the connection call volume should be calculated by adding the actual usage number.

Nevertheless, with respect to access from February 1, 2004 to December 31, 2010 with respect to LM 3G and VM 3G calls, the Defendant calculated the connection call volume by adding only the frequency of use premised on the case of connection by mC or CGS, and settled the connection call charges based thereon. Therefore, barring any special circumstance, the Defendant is obliged to pay the Plaintiff additional connection call charges for the connection facilities that are additionally used.

(3) The decision of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation of legal act, the calculation method of connection call charges under the Interconnection Agreement, and the frequency of application under Article 24 of the Interconnection Standards, contrary to

B. Whether the claim for additional connection call charges arising from connection after September 18, 2009 contravenes the good faith principle

(1) The principle of trust and good faith is an abstract norm that a party to a legal relationship should not exercise a right or perform an obligation in a manner that violates equity or trust in consideration of the other party’s interest. In order to deny the exercise of a right on the grounds of violating the principle of trust and good faith, there must be a justifiable state in which the other party provided trust to the other party or made the other party objectively in trust, and the other party’s exercise of a right against the other party’s trust should reach an extent that is not acceptable in light of the concept of justice (see, e.g., Supreme Court Decisions 2003Da2390, 2406, Apr. 22, 2003; 2009Da68941, Feb. 10, 2011).

(2) As acknowledged in the following 3., the Plaintiff did not comply with the Defendant’s June 2, 2008 request for the provision of information about LM 3G and VM 3G calls, and thus, delayed mc connection with each of the above subparagraphs. As from September 18, 2009, the Plaintiff is liable for damages due to nonperformance or tort against the Defendant as of September 18, 2009.

Under the Interconnection Agreement, the Plaintiff is obligated to provide mC connection for LM 3G and VM 3G calls until September 17, 2009 to ensure that the Plaintiff can use the Plaintiff’s connection facilities to the minimum extent. Nevertheless, the Plaintiff refused such connection and caused the Defendant to continue to connect 2G mC calls after the said date to use the additional connection facilities for the right section, and accordingly, claimed additional connection call charges.

If the Plaintiff can file a claim against the Defendant for the payment of the connection call fee for the additional use of the connection facilities by the Defendant, by maintaining the 2G mpway connection method for the part of connection after September 18, 2009 with respect to LM 3G and VM 3G calls, the Defendant who has paid the connection call fee to the Plaintiff can again file a claim for damages equivalent to the same amount on the ground that the Plaintiff again rejected the connection with LM 3G and VM 3G calls. However, this is against the litigation economy due to the result of recognizing the circular lawsuit between the Plaintiff and the Defendant, and it is not reasonable to allow the Plaintiff to return it to the Defendant (see, e.g., Supreme Court en banc Decision 200Da62322, Mar. 21, 2002; Supreme Court Decision 2014Da4202, Jul. 23, 2015).

(3) The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the good faith principle as alleged in the plaintiff's grounds of appeal.

C. Whether set-off against the claims for additional connection call charges arising from the connection between September 30, 2007, the extinctive prescription of which was completed, is permissible

Of the Plaintiff’s claim for additional connection call charges, the extinctive prescription has expired until September 30, 2007, but the Plaintiff claims that the Defendant offsets the Defendant’s damage claim, which is the passive claim, pursuant to Article 495 of the Civil Act. However, the lower court determined that the Defendant’s damage claim was caused by the Plaintiff’s intentional act and thus, set-off is not allowed pursuant to Article 496 of

The plaintiff alleged in the ground of appeal that since the defendant's damage claim is not caused by the plaintiff's intentional act, the offset against the claim for connection call charges, the extinctive prescription of which has expired, should be allowed. However, as seen thereafter, the defendant's damage claim is due to the plaintiff's intentional act of default or tort, and it is not allowed to offset against the claim. Therefore, the above ground of appeal

D. Whether the scope of the Defendant’s damage claim offset against the Plaintiff’s additional connection call fee claim is appropriate

The lower court determined that the Defendant’s damage claim was appropriated against part of the Plaintiff’s additional connection call fee claim according to the Defendant’s counterclaim. Accordingly, the Defendant asserted as the grounds of appeal that the amount of the Defendant’s damage claim (which concerns the difference between the connection call fee and the connection call fee in accordance with the CGS rate) that is the automatic claim is larger than that recognized by the lower court. However, as seen thereafter, the lower court’s determination on the scope of the Defendant’s damage claim is justifiable, and thus,

E. Whether liability for damages arising from a tort is established against the additional connection call charges

(1) The lower court determined that the Defendant’s additional use of the Plaintiff’s connection facilities for LM 3G and VM 3G calls, but this is merely a matter of settlement of connection call charges, and the use of additional connection facilities does not constitute tort. In addition, the lower court determined that even if the Defendant did not separately notify the Plaintiff of the communications route of LM 3G and VM 3G calls pursuant to Article 13(1) of the Interconnection Standards, it cannot be deemed that any damage was caused to the Plaintiff.

(2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s above determination is justifiable, and contrary to what is alleged in the Plaintiff’s grounds of appeal, there were no errors of incomplete deliberation by

3. Judgment on the grounds of appeal as to the counterclaim

A. Whether the Plaintiff’s obligation to provide mC connection occurred only through the ruling of the Korea Communications Commission on November 18, 2009

(1) The lower court determined that, since the conclusion of the Interconnection Agreement, the Plaintiff was obligated to provide mcccc connection for 3G calls at the Defendant’s request and to provide information necessary for the Defendant’s lawful request for connection (as VM 3G calls communicate in the same way as M 3G calls, this applies to VM 3G calls).

On November 18, 2009, the Plaintiff, upon the Defendant’s application for a ruling, made a ruling that “the Plaintiff is obliged to provide access to the Defendant upon the Defendant’s request, as the Plaintiff is obligated to access the IMT-200 (three-generation mobile communications services) network to the Defendant according to the Interconnection Agreement,” and the Korea Communications Commission’s ruling has the effect of reconciliation under the Civil Act. Accordingly, the rights and obligations based on the previous legal relationship were extinguished by its creation effect. Accordingly, the Plaintiff’s obligation to provide mC calls for LM 3G and VM 3G calls was asserted only on November 18, 2009. However, the lower court rejected the Plaintiff’s assertion that “The Korea Communications Commission shall be deemed to have reached an agreement identical with the contents of the finance when the ruling becomes final and conclusive,” but the content of the agreement between the Plaintiff and the Defendant deemed to have been concluded by the Korea Communications Commission pursuant to the ruling on November 18, 2009, as the content of the Interconnection Agreement becomes effective.”

(2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s determination is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine regarding the finance of the Korea Communications Commission pursuant to Article 45 of the former Telecommunications Business Act, or by exceeding the bounds of the principle

B. Whether the Defendant’s September 21, 2007 notice constitutes a request for the provision of information necessary for mC connection

(1) If the parties are clearly aware of the declaration of intention jointly by the parties, the declaration of intention shall be interpreted according to the common perception of the parties even if it is different from the language indicated by the parties. However, if the meaning of the person who made the declaration is different from the meaning of the other party’s idea, the objective and normative interpretation of the declaration of intention should be made by taking into account how the other party who

(2) The lower court determined that it was difficult to view the Defendant’s September 21, 2007 notice as a request for the provision of information necessary for mC connection. For that reason, the said notice includes a request for the provision of information related to connection, but the said public notice is an answer to the Plaintiff’s public notice on August 14, 2007, demanding the settlement of additional connection call charges for LM 3G and VM 3G calls, and the purport of the said public notice is to determine whether to settle additional connection call charges on the basis of the necessary and confirmed information for confirmation of the route of communication.

(3) The judgment of the court below is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the interpretation of expression of intent as alleged in the defendant

C. Whether the Defendant’s June 2, 2008 notice constitutes a valid connection request for mC connection

(1) The lower court determined that the Defendant’s June 2, 2008 notice cannot be deemed as a valid request for connection with LM 3G and VM 3G calls. For that reason, according to Article 14(1) and (3) of the Interconnection Agreement and Article 10(1) of the Interconnection Standards, the request for connection or alteration must be made in writing stating the necessary requirements, such as the connection section and the connection capacity, and the Defendant’s June 2, 2008 notice indicates that the connection section and the connection capacity are omitted.

(2) The Defendant’s above assertion in the grounds of appeal is premised on the Defendant’s request for the provision of information necessary for mc connection prior to the notice dated June 2, 2008. However, as seen above, it is difficult to view the Defendant’s September 21, 2007 notice as the request for information necessary for mc connection. Thus, the above assertion in the grounds of appeal on a different premise is unacceptable.

D. Whether determination on the scope of liability for damages caused by the Plaintiff’s nonperformance of duty to provide information is reasonable

(1) On the occurrence and scope of the Plaintiff’s liability for damages against the Defendant, the lower court determined as follows.

(A) The Defendant’s June 2, 2008 notice cannot be deemed as a valid request for access to LM 3G and VM 3G calls. However, it constitutes a request for information for this purpose. According to Article 14(4) of the former Telecommunications Business Act (Notice No. 2008-67 of the Korea Communications Commission, May 19, 2008; hereinafter “Information Provision Standard”. This is also incorporated under Article 4 of the Interconnection Agreement), the Plaintiff was obligated to provide the Defendant with information necessary for the request for access to mC calls from June 3, 2008 to September 3, 2008, which received the above public notice, even though the Plaintiff did not comply with the above request. The Plaintiff’s act constitutes nonperformance of the Interconnection Agreement, and at the same time constitutes a tort in violation of Article 36-3(1)1 of the former Telecommunications Business Act and a tort liability for damages arising therefrom.

(B) Meanwhile, if the Defendant received information necessary for the request for connection from the Plaintiff by September 3, 2008, at least two weeks thereafter, requested an effective connection with the connection section and the connection capacity until September 17, 2008. However, according to Article 14(4) of the Interconnection Agreement and Article 10(2) and (3) of the Interconnection Criteria, the connection time shall, in principle, be the date the connection is desired, but the time may be extended by the notification of the connection supplier, but the maximum possible time may be extended shall not exceed one year from the date the connection is requested, unless there are any reasons such as new installation of the exchange, etc. Accordingly, the Defendant should have paid the Plaintiff the difference at the rate of 3G and 3G calls from September 17, 2008 to September 17, 2008 (the Plaintiff should have paid the difference at the rate of 3G and 3G calls from the date above to September 17, 2009).

(2) Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the said determination by the lower court is justifiable. In so determining, the lower court did not exhaust all necessary deliberations or exceeded the bounds of the principle of free evaluation of evidence against logical and empirical rules by misapprehending the legal doctrine on calculation of the scope of damages and distribution of the burden of proof, contrary to what is alleged in the grounds of appeal by the original and the Defendant.

E. Whether the Plaintiff’s liability for damages was due to an intentional default or tort

(1) Article 496 of the Civil Act provides, “If the obligation has been caused by an intentional tort, the obligor shall not set up against the obligee any defense against the obligee.” If set-off is granted for the damage claim caused by an intentional tort, even the person who committed the intentional tort would not be required to pay damages in reality by the set-off right, which would cause retaliation. Moreover, the victim’s intentional tort would not be able to receive actual repayment by the tortfeasor’s exercise of the set-off right does not accord with the concept of social justice. Therefore, the purport of this provision is to prevent the occurrence of intentional tort, as well as to enable the victim of the intentional tort to obtain actual repayment (see Supreme Court Decision 2001Da52506, Jan. 25, 2002).

This provision is applicable to an offset against damage liability arising from an intentional tort, and it does not apply to damage liability arising from an intentional default. However, if an intentional act concurrently constitutes a tort and at the same time the damage liability arising from an intentional default competes with the damage liability arising from an intentional default, this provision needs to be analogically applied. In such a case, permission for offset against damage liability arising from an intentional default would extinguish even when the damage liability arising from an intentional tort would be extinguished, and the legislative purport of this provision would be dismissed. Therefore, in such exceptional cases, Article 496 of the Civil Act should be analogically applied to the obligor’s damage liability arising from an intentional default, even if the obligor offsets the damage liability arising from an intentional default against the obligee.

(2) Based on the adopted evidence, the court below acknowledged that, under the Interconnection Agreement, the Plaintiff, according to the Interconnection Agreement, has a clear duty to provide mC connection for 3G and VM 3G calls, the Plaintiff refused to provide mC connection for 3G and VM 3G calls without considering the Defendant’s opinion that the Interconnection Agreement applies only to 2G and 3G calls, and that the Plaintiff did not comply with the Defendant’s request for information provision on June 2, 2008. Based on these facts, the court below determined that the Plaintiff’s act constitutes intentional default or tort, and therefore, the Plaintiff’s claim for offset against the Defendant’s damage claim arising therefrom is not allowed.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the said judgment is justifiable. In so determining, the lower court did not exhaust all necessary deliberations or did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules by misapprehending the legal doctrine on the prohibition of set-off under Article 496 of the Civil Act,

4. Conclusion

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

[Attachment] Fact-finding and summary of the main claim and counterclaim: omitted

Justices Park Poe-young (Presiding Justice)