[2] In a case where Gap insurance company, etc. used a loan transaction agreement, mortgage contract document, etc. including a clause that "expenses are borne by marking Account in one of the three items in relation to the burden of mortgage right" in connection with additional interest rate in lending real estate to Eul et al., and Eul et al. bears the cost of mortgage right by selecting under the above provision, the case holding that the judgment below erred in the misapprehension of legal principles, etc. in holding that the burden of expenses of Eul et al. is based on an individual agreement

[3] The requirements and standard for determining the terms and conditions to be null and void on the ground that they are unfairly unfavorable clauses to customers, which are “a clause which has lost fairness in violation of the principle of trust and good faith”

[4] In a case where Gap insurance company, etc. entered into a contract with Eul et al. using a loan transaction agreement including a clause that "expenses are borne by marking Account in one of the three items regarding the burden of mortgage expense" in connection with additional interest rate, etc. in connection with the loan of real estate to Eul et al., the case holding that the above provision is insufficient to be deemed null and void pursuant to Article 6 (1) of the former Regulation of Standardized Contracts Act as a standardized contract clause that unfairly gives disadvantages to customers

[2] In a case where Gap insurance company, etc. used a loan transaction agreement, mortgage contract, etc. containing a clause that "expenses are borne by marking Account in one of the three items in relation to the burden of mortgage expense" (hereinafter "liability clause") in connection with additional interest rate in lending real estate to Eul, etc., and Eul et al. bears the expense of mortgage creation by choice under the above provision, the case holding that the judgment below erred in the misapprehension of legal principles as to criteria for determining whether an agreement based on the standard clause constitutes an individual agreement or the burden of proof, etc., without examining whether there was assertion or proof as to individual and specific circumstances for recognizing the burden clause as an individual agreement under the expense clause which can be seen as a standardized contract.

[3] Under Article 6(1) and (2)1 of the former Regulation of Standardized Contracts Act (amended by Act No. 10169, Mar. 22, 2010), in order to be deemed null and void on the ground that the terms and conditions clause is “a clause which has lost fairness in violation of the principle of trust and good faith” as a provision unreasonably unfavorable to customers, it is insufficient to say that the terms and conditions clause is somewhat unfavorable to customers. In addition, it should be recognized that the standardized terms and conditions developer abused his/her transaction position to make and use a clause contrary to the legitimate interests of the contracting party and reasonable expectations, thereby impairing sound trade order. In addition, whether the terms and conditions clause constitutes “unfairly unfavorable terms and conditions to customers” falling under the grounds for invalidation of the standardized terms and conditions clause should be determined by comprehensively taking into account all the circumstances such as the probability of disadvantages and disadvantages that may arise to customers pursuant to the standardized terms and conditions clause, influence on the transaction process between the parties, and the relevant provisions of relevant statutes

[4] In a case where Gap insurance company, etc. entered into a contract with Eul, etc. using a loan transaction agreement, mortgage contract, etc. containing a clause that "expenses are borne by marking Account in one of the three items in relation to the burden of mortgage expense" (hereinafter "liability clause"), in connection with additional interest rate, etc. in lending real estate to Eul, the case holding that in light of various circumstances such as the content and legislative intent of the legal provisions on unfair contract and standardized contract, the Fair Trade Commission’s amendment to the purport that the former part of the standardized contract with the same type and content as the expense clause clearly specify the obligor in advance for each expense, and that the right to use the standardized contract becomes final and conclusive, solely on the ground that the standardized contract clause prior to the amendment or the same expense clause causes unfair disadvantage to customers, such as impairing sound trade order, it is insufficient to view that the standardized contract clause prior to the amendment or Article 6(1) of the former Regulation of Standardized Contracts Act (amended by Act No. 10169, Mar. 22, 2010) is null and void.

1. As to whether the Plaintiffs’ loan expense burden pursuant to an agreement based on the terms and conditions

A. According to Article 2(1) of the former Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010; hereinafter “the Act”), a contractual term refers to a contractual term, regardless of its name, form, or scope, which becomes a content of a contract prepared in advance by one of the parties to the contract in order to enter into a contract with a large number of other parties. However, in a case where one of the parties to the contract enters into a contract by presenting it to a certain party, if the other party has an opportunity for the other party to adjust his/her interests by conducting individual negotiations as to a specific provision with the other party, such specific provision shall be deemed an individual agreement not subject to the regulation of the Act on the Regulation of Terms and Conditions. In order to have a separate negotiation, even if the result of the negotiation does not necessarily appear in the form of changing the content of a specific provision, it shall be sufficiently examined with the party who presented the contract, and exercise influence over the specific provision, and it shall be proved by 9010 or 300.

B. According to the reasoning of the lower judgment, the Plaintiffs entered into a contract by using a loan transaction agreement, mortgage contract, etc. prepared and presented by the Defendants upon obtaining a real estate loan from the Defendants. The contract contains each standardized contract with respect to the burden of expenses incurred in the procedures for the creation of a collateral security agreement, and the stamp tax pursuant to the agreement, “bank,” and “50% each,” respectively. The registration tax, education tax, purchase of national housing bonds, certified judicial scrivener fees, cancellation expenses following the termination of mortgage, appraisal fees, etc. are divided into “debtor,” “establisher,” “creditor,” and “creditor,” and each standardized contract contains each clause to the effect that the expenses shall be borne as prescribed by the method of indicating east in each column (hereinafter “this case’s expense burden clause”). The Plaintiffs explicitly indicated or impliedly agreed to the same effect in the column they bear, and where the Plaintiffs choose the burden of expenses by the Defendants, the terms and conditions that the additional dues are applied or the additional dues are to be imposed.

The lower court determined to the effect that, solely on the grounds of the following circumstances: (a) the instant cost-bearing clause was designed to include the anticipated case as a result of contract negotiations in advance, and to include the outcome in the contract contents; (b) it is more convenient to directly state the result after contract negotiations; and (c) it is reasonable to deem that customers, such as the Plaintiffs, collected information about interest rates and other loan incidental expenses from the financial institutions to receive the loan and received the loan by setting the opposite party who provided the most favorable conditions; and (d) it is reasonable to deem that if the Defendants were to choose the loan as instructed by the Defendants due to the risk of refusing the loan, it is not because the financial institutions were unilaterally superior to the financial institutions, but because the loan users were in a relatively poor economic position.

C. However, in order to conclude a contract with multiple other parties, the instant cost-bearing clause appears to fall under the terms and conditions prescribed by Article 2(1) of the Act, which are the terms and conditions of the contract prepared by the Defendants in advance with certain forms so that the contract can be concluded within the scope of the selective items prescribed by the said clause (see Supreme Court Decision 2008Du23184, Oct. 14, 2010). Furthermore, in light of the aforementioned legal principles, in order for the content of the contract under the instant cost-bearing clause to be recognized as an individual agreement between the Plaintiffs and the Defendants, it is insufficient just because the contract was selected under the selective items prescribed by the instant cost-bearing clause, and there is insufficient circumstance that the Plaintiffs had the opportunity to adjust the interests of the Plaintiffs by modifying the terms and conditions, without being bound by the limited choice items set forth in the instant cost-bearing clause, through individual negotiations or interests. The Defendants must assert and prove such circumstance.

However, the lower court did not examine whether there was the Defendants’ assertion or proof as to the individual and specific circumstances, and determined the Plaintiffs’ burden of loan expense solely based on the circumstances indicated in the foregoing holding. Therefore, the lower court erred by misapprehending the standard for determining whether an agreement based on the terms and conditions of a standardized contract constitutes an individual agreement or by misapprehending the legal doctrine on the burden of proof.

2. As to whether this case’s expense apportionment clause is invalid on the ground that it falls under Article 6(1) of the Act

A. 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 an unreasonably unfavorable clause against a customer, it is insufficient to say that the standardized contract clause is somewhat unfavorable to the customer. It should be recognized that the standardized contract author abused his position in the transaction and prepares and uses a standardized contract clause contrary to the principle of trust and good faith against the legitimate interests and reasonable expectations of the contracting party, thereby impairing the sound trade order. In addition, whether the standardized contract clause constitutes “unfairly unfavorable clause to the customer” as the ground for invalidation of the standardized contract should be determined by comprehensively taking into account all the circumstances such as the content and disadvantages that may arise to the customer under the standardized contract, the probability of disadvantages that may arise to the customer, the impact on the transaction process between the parties, and the provisions of related Acts and subordinate statutes (see, e.g., Supreme Court en banc Decision 90Meu23899, Dec. 24, 191; Supreme Court Order 2007Ma28, Dec. 16, 2008).

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

(1) On December 2002, the Korea Federation of Banks (hereinafter “the Korea Federation of Banks”) (hereinafter “the Korea Federation”) obtained prior approval from the Fair Trade Commission pursuant to Article 19-2 of the Act, with respect to the subject of the cost of creating a security right, the Korea Federation of Banks (hereinafter “instant standard terms and conditions”) was in the form and content of the instant standard terms and conditions, which are the same as the instant standard terms and conditions for bearing the cost of creating a security right, and was in the form and content of the instant standard terms and conditions.

(2) On January 1, 2005, the Fair Trade Commission, upon receiving a request from consumer organizations, etc. to revise the revised standard terms and conditions, revised the Act to specify the person to be borne in advance and specifically by each expense after undergoing the procedure for recommending a request for review of standard terms and conditions pursuant to Article 19-2 of the Act. On February 11, 2008, the Korea Federation of Banks and national banks, etc., issued a license for using the amended standard terms and conditions (hereinafter “instant amended standard terms and conditions”).

(3) The standard terms and conditions system under Article 19-2 of the Act was established in order to establish a sound trade order and prevent unfair terms and conditions from being widely used. The Fair Trade Commission’s administrative decision that a request for the use of standard terms and conditions in a certain business area constitutes an unfair terms and conditions, etc. is a prior and administrative measure in order to prevent damage to many customers by preparing and encouraging the use of standard terms and conditions reflecting the economic conditions in a certain business area and various interests of its members. The above provision of the Act provides separate procedural requirements, legal effects, etc. from the provisions of Articles 6 through 14 and 17 of the Act, taking into account the purport of the disposition system for the use of standard terms and conditions and the purport of such disposition system.

(4) The Fair Trade Commission amended the instant selective-choice clause as the amended standardized terms and conditions, and recommended the use thereof, taking into account the policy aspect to prevent consumer complaints and disputes and to establish order in fair trade by reflecting the purpose of the standardized terms and conditions system. As such, it seems that the Fair Trade Commission made an administrative decision in order to ensure that customers can easily choose loan products by reducing information search costs on the cost of creating security rights and by comparing only loan interest rates of financial institutions, while making efforts to reduce loan expense rates to financial institutions, thereby promoting customer convenience and promoting competition among financial institutions.

(5) In addition, prior to the enforcement of the standardized terms and conditions in the former standardized terms and conditions, prior to the enforcement of the standardized terms and conditions in this case, the instant multiple-choice clause was prepared in order to protect the interests of the customers by specifying the opportunity for the customers to choose a choice that may escape from total amount of the burden as the standardized terms and conditions, and thus, was recognized as the standardized terms and conditions subject to prior examination and approval by the Fair Trade Commission. In addition, as recognized by the lower court, in cases where the customer selects the cost of creating a security right pursuant to the instant selective-choice clause, compared to the case where the financial institution bears the cost, the transaction

C. In light of the aforementioned legal principles, considering the specific contents of the instant multiple-choice-choice-sharing clause and the circumstances before and after the amendment of the standard terms and conditions in this case, the disadvantages that may arise to customers and their occurrence, the 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 selective-choice-sharing 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 view the instant multiple-choice-choice-sharing clause or the same cost-sharing clause as the standardized terms and conditions that unfairly puts disadvantages to customers, such as impairing sound trade order, which are invalid under Article 6(1) of the Act, and there is no other evidence to acknowledge otherwise.

Therefore, the Plaintiffs’ claim for return of unjust enrichment seeking the return cannot be accepted, since the stamp tax and the cost of establishing a mortgage borne by the Plaintiffs pursuant to the instant cost-bearing clause cannot be deemed to have no legal grounds.

Therefore, even if the court below erred by misapprehending the legal principles regarding determination of whether the case constitutes an individual agreement as seen above, the conclusion that the plaintiffs' claim for return of unjust enrichment is legitimate, and thus, it cannot be said that there is no error affecting the conclusion of the judgment

3. Conclusion

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

[Attachment] List of Plaintiffs: omitted

Justices Shin Young-chul (Presiding Justice)