[2] In a case where the matters stipulated in the terms and conditions are sufficiently anticipated for customers even without any separate explanation, or where the contents already stipulated in the Acts and subordinate statutes are returned or delayed, whether the business entity has a duty to specify and explain (negative)

[3] In cases where the obligee and the obligor have agreed to postpone the time limit after the due date has arrived, the starting point of the statute of limitations (i.e., when the changed time limit comes) / Whether the agreement on deferment of time limit can be implicitly agreed (affirmative), and the standard for determining whether there exists an implied agreement on deferment of time limit

[2] If the terms and conditions of a contract are generally and commonly used in transactions, and the customer could have sufficiently predicted without any separate explanation, or if it is merely a mere degree of repeating or delaying what is prescribed by the laws and regulations, it shall not be deemed that the business operator has an obligation to specify and explain such matters.

[3] Article 166 of the Civil Act provides, “The extinctive prescription shall commence from the time when a right can be exercised.” As such, the extinctive prescription of a claim which has a time limit runs from the time when the time when the time limit comes due, but where the obligee and the obligor have agreed to defer the time limit after the time limit comes due, changes in the time when the extended time period comes to the time when the changed time period becomes due and the extinctive prescription runs again from the time when the changed time limit becomes due. Such an agreement on deferment of time limit is explicitly and implicitly possible as well as explicitly and explicitly. Whether an implied agreement on deferment of time is deemed to exist in a contractual obligation relationship should be determined by comprehensively considering all the circumstances such as the process

1. Regarding the standard for the settlement of the sale price and the scope of the obligations of the sale price

A. Under Article 6(1) and (2)1 of the former Regulation of Standardized Contracts Act (amended by Act No. 10169, Mar. 22, 2010; hereinafter “former Regulation of Standardized Contracts Act”), in order to consider the terms and conditions as null and void on the ground that they are unfairly unfavorable terms and conditions to customers, the terms and conditions are somewhat disadvantageous to customers. It is insufficient to say that the terms and conditions are somewhat unfavorable to customers. It should be acknowledged that the standardized contract contractor abused its trade position to prepare and use the terms and conditions against the legitimate interests and reasonable expectations of the contracting parties, thereby impairing sound trade order. The determination of whether the terms and conditions are “unfairly unfavorable terms and conditions to customers” falling under the grounds for invalidation of the terms and conditions should be made by comprehensively taking into account all the circumstances such as the content and likelihood of disadvantages that may arise to customers pursuant to the terms and conditions, impact on the transaction process between the parties, influence on the transaction process between the parties, and relevant provisions (see Supreme Court Decision 2014Da136416, Dec. 27, 2016

If the terms and conditions are generally and commonly used for a transaction, and the customer could have sufficiently predicted without a separate explanation, or if it is merely a mere degree of refusing or delaying what has already been prescribed by the laws and regulations, it cannot be said that the business operator has an obligation to explain and explain such matters (see Supreme Court Decision 2006Da87453, Apr. 27, 2007, etc.).

B. In light of the following circumstances, the lower court: (a) on the premise that Article 5(1) of the instant sales contract, which provides for the settlement of rental deposit according to the leased area of the store allocated after lottery, loses fairness contrary to the principle of trust and good faith; or (b) the Plaintiff violated the duty to explain important matters of the terms and conditions to the Defendant, the customer, and thus becomes null and void pursuant to the former Terms and Conditions Regulation Act; (c) thus, the above provision should be amended to be applied only within the scope of “increased and decreased area of the exclusive use area”; and (d) determined that the instant sales contract should be adjusted in proportion to the increase and decrease of the leased area (the same shall apply to the increase and decrease of the leased

① Article 10(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter “Act on the Ownership and Management of Aggregate Buildings”) provides that “The share of each co-owner shall belong to the co-ownership of all sectional owners,” and Article 12(1) provides that “The share of each co-owner shall conform to the ratio of the area of the section for exclusive use he/she owns.” Since the actual common area of a sectioned store is a trade practice that follows the ratio of the area of the section for exclusive use, the increase and decrease of the area for common use would be expected to be in proportion to the increase and decrease of the area for exclusive use if the average and reasonable customer is a trade practice. On the contrary, it is extremely exceptional that it is difficult to expect that the area

② Since the instant sales contract does not provide for the basis or method of calculating the leased area, if the language and text of the contract clause is interpreted as it is, it may cause unreasonable consequences contrary to the legitimate interests of the buyer and reasonable expectations by adjusting the rental deposit based on the “sale area plus an area for common use that is not proportional to the increase and decrease of exclusive use area” which can be unilaterally determined after the contract by the business operator.

③ Article 5(1) of the instant sales contract is unreasonably unfavorable to buyers in that it grants a business operator the right to unilaterally set standards for settlement after entering into a contract, and it is difficult for buyers to anticipate in light of all relevant circumstances, such as the type of transaction of the contract. Article 10 Subparag. 1 of the former Terms and Conditions Regulation Act provides that “Where a business operator unilaterally determines or alters the details of payment without reasonable grounds.”

④ The Plaintiff did not comply with the purport of statutes, such as the Act on the Ownership and Management of Aggregate Buildings, and the principle of allocation of the common area according to ordinary practices, and applied unilaterally separate standards established without the consent of the purchaser, and requested settlement based on such standards. In the process, the Plaintiff did not specify or explain the above standards to the purchaser, including the Defendant.

C. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following.

① A project implementer of the building project of the building in the building zone of the building zone of the building zone of the building zone of the building zone of the building zone of the building zone of the building zone of the building zone in the building zone of the old-gu Seoul Metropolitan Government (hereinafter “the building of this case”). Around September 2002, the Plaintiff entered into a comprehensive implementation contract of the building project with the above reconstruction association.

② On September 28, 2006, the said reconstruction association opened an extraordinary general meeting of its members and decided to include 1/2 of the passage area (so-called “sloping area”) linked to each store in the common area of the relevant store when calculating the sale area, and to calculate the remaining common area in proportion to its exclusive area.

③ From June 2008 to July 2008, the Plaintiff concluded the instant sales contract with the Defendant to sell the right to lease the store of this case on three occasions.

④ Article 1(1) of the instant sales contract provides that “The specific location of a store shall be drawn after payment of the balance, and the sales price shall be settled according to the size of the store determined by lot.” Article 4(1) of the instant sales contract provides that “The sales area of the store shall be the area added to the area for exclusive use by lot,” and Article 5(1) provides that “If there is an increase or decrease in the area for exclusive use by lot after a store drawing, the sales price shall be adjusted by a method that increases or decreases in proportion to the increase or decrease rate,” and Article 5(1) provides that “The buyer shall settle the rental deposit according to the leased area of the store allocated after drawing.”

D. Examining the above facts in light of the legal principles as seen earlier, the judgment of the court below is not acceptable for the following reasons.

① According to the Aggregate Buildings Act, a section for common use, excluding a section for partial common use, belongs to the co-ownership of all sectional owners (Article 10(1)), and each co-owner’s share is in accordance with his/her ratio of the area of his/her section for exclusive use (Article 12(1)), but such matters may be separately determined by regulations (Article 10(2)). In real transactional relationship, each co-owner’s share in the section for common use does not conform to the area of his/her section for exclusive use.

(2) In the case of large-scale commercial buildings occupied by a large number of sectioned stores, the value of each individual store may vary substantially on the same floor. Therefore, it cannot be deemed that reflecting the passage area abutting on the relevant store in calculating the common area that serves as the basis for rental deposit goes against the legitimate interests of buyers and reasonable expectations.

③ In the case of the instant shopping mall, 1/2 of the passage area abutting on each sectional store in calculating the sale area shall be included in the official use area of the relevant store, and the remaining public use area shall be calculated in proportion to the exclusive use area of the relevant store is not unilaterally determined for one of the interests of the relevant project operators, etc., as matters determined through an extraordinary general meeting to eliminate unfair treatment that may arise between the reconstruction association members who were in the position to be determined by the location of their own store through the lot in the future. This can also be seen as follows: (a) in accordance with the calculation method, the sale price increase as well as the store where the sale price is reduced.

④ In light of the language, content, system, etc. of Article 5(1) of the instant sales contract, it is evident that the rental deposit out of the sales price ought to be settled according to the leased area plus the common area. In addition, the above contents are general and common in transactions, and thus, the Defendant also knew or could have sufficiently predicted it.

⑤ Even if the Plaintiff did not explain to the Defendant that the calculation method of the common area as referred to in the above provision, i.e., 1/2 of the passage area abutting on each of the sectioned stores, and that the remaining common area is calculated in proportion to its exclusive use area, it would have been expected that the sales price was calculated due to the increase and decrease in the size of the store after drawing at the time of the instant sales contract, and that the method of settlement would have been an important interest to the contracting parties. In light of the fact that the Defendant was notified of the final details of the sales contract in the instant sales contract or the store lottery, as well as the Plaintiff did not raise any objection thereto, even if the Defendant was well aware of, or was well aware of, the above contents from the time of the contract, it would have not affected the conclusion of the contract.

E. Nevertheless, the court below held that, solely based on its stated reasoning, Article 5(1) of the sales contract of this case should be interpreted as invalid in light of the purport of the former Act on the Regulation of Terms and Conditions. Thus, the court below erred by misapprehending the legal principles on the former Act on the Regulation of Terms and Conditions, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the expiration of extinctive prescription of the claim remaining after the sale price

A. Article 166 of the Civil Act provides, “The extinctive prescription shall run from the time when a right can be exercised.” As such, the extinctive prescription of a claim which has a time limit runs from the time when the time when the time limit comes due, but where the obligee and the obligor have agreed to defer the time limit after such time limit comes due, changes in the time when the extended time period comes to the time when the changed time period becomes due and the extinctive prescription commences again from the time when the changed time limit becomes due. Such an agreement on deferment of time limit is explicitly and implicitly possible as well as explicitly. Whether a delay of time limit exists in a contractual obligation relationship should be determined by comprehensively taking into account all the circumstances, such as the process and content of the contract, progress

B. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, Article 2 of the instant sales contract provides for the remainder payment period of the sales price as of October 25, 2009 (paragraph (2)) where there is an increase or a decrease in the size of the store after the shop lottery (Paragraph (1)), and provides that the purchaser shall be notified in writing when the date of payment is changed (Paragraph (6). Article 3 provides that the purchaser shall pay the remainder payment amount of 19% per annum. The Defendant did not pay part of the remainder payment based on the initial sales price after the lapse of October 25, 2009, and the Plaintiff allocated the store to the buyer by lottery, and the Defendant did not notify the Defendant of the fact that he did not pay the remainder payment by April 30, 2010. < Amended by Presidential Decree No. 22426, Oct. 19, 2010>

C. In light of the aforementioned facts and the following circumstances revealed through this, it is reasonable to view that the instant contract for sale in lots was explicitly modified on April 30, 2010, in light of the legal principles as seen earlier: (a) the period of extinctive prescription of the instant contract for sale in lots was scheduled to settle the sales price after drawing the store from the time of its establishment; (b) was premised on the fact that the due date for the remainder payment can be changed; and (c) the Plaintiff’s notice of deferment of payment was given to the Defendant who did not pay part of the remainder after the due date specified in Article 3 of the instant contract for sale in lots was delayed for at least six months; and (d) the Defendant’s interest and the constructive intention cannot be inferred. Therefore, it is apparent that the due date for the performance of the outstanding claim under the instant contract for sale in lots was changed on May 1, 2010, since the extinctive prescription of the said claim will run again from May 1, 2010, which is the date of its application for the instant payment in lots.

D. Nevertheless, the lower court determined that the extinctive prescription of the claim for the remainder of the sale price in this case was completed solely based on its stated reasoning. In so doing, it erred by misapprehending the legal doctrine on the starting point of the extinctive prescription period, thereby adversely affecting the conclusion of the judgment

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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 Jo Hee-de (Presiding Justice)