[2] The legal nature of a housing sale guarantee contract / The legal nature of a guarantee insurance contract and whether both the provisions of an insurance and a guarantee apply to the extent not contrary to its nature (affirmative) / Whether this applies to a housing sale guarantee contract (affirmative)

[3] In the interpretation of a standardized contract, whether the principle of disadvantage of the author is applied in a case where the standardized contract provision is interpreted fairly, reasonably, and objectively and uniformly as a result of an objective and uniform interpretation based on an average customer's understanding possibility (negative)

[4] The case holding that in case where the guarantee contract is terminated in case where the guarantee contract is cancelled after the approval of the public announcement of the public announcement is cancelled due to reasons such as low sale rate, and the guarantee fee for the remaining guarantee period is refunded as of the date of the cancellation of the approval of the public announcement of the public announcement, and the apartment construction project owner Gap et al. concluded the guarantee contract for the house sale with the housing guarantee company for the apartment construction project owner, paid the guarantee fee for the house sale to guarantee obligations under the contract, and did not publicly announce the invitation of occupants, and thereafter requested the return of the total guarantee fee already paid to the housing guarantee company for the housing construction after the approval of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement, the above provision does not constitute an important content of the standardized contract, and it does not apply to the guarantee fee for the housing construction project owner since the guarantee contract and its detailed and uniform interpretation can be interpreted objectively and uniformly in the system, and the principle

[2] A housing sales guarantee contract is a contract for a third party on condition that a guarantee agency is liable for the refund of the down payment and intermediate payment already paid by a buyer, or for the performance of the contract for the sale of a house, in case where the executing agency becomes unable to perform the obligation to supply a house under a sales contract, and is similar in nature to a guarantee insurance. The guarantee insurance is a non-life insurance contract for which the insurer takes over the compensation of the damage to be incurred by the insured due to the nonperformance of a policyholder’s obligation, and is formally aimed at the same effect as a guarantee contract with the nature of the guarantee, in substance, of the insurance contract covering the obligor’s default as an insured event. Therefore, the guarantee insurance is also subject to both the insurance and the guarantee to the extent that it does not

[3] A standardized contract shall be interpreted fairly and reasonably in light of the purpose and purpose of the standardized contract in accordance with the principle of trust and good faith, and it shall be objectively and uniformly interpreted on the basis of the average customer’s understandability, not taking into account the intended purpose and intent of the individual contracting party. Even after the aforementioned interpretation, in cases where the meaning of the standardized contract is unclear, such as where the standardized contract provisions are objectively and objectively interpreted and their respective interpretations are reasonable, it shall be interpreted in favor of customers. However, if the standardized contract provisions are interpreted fairly, reasonably, and objectively and uniformly based on average customer’s understandability as a result of an objective and uniform interpretation, there is no room for interpreting

[4] Article 649 of the Commercial Act provides that a guarantee contract shall be terminated in cases where the guarantee fee is returned after the commencement of the guarantee period due to reasons such as low sale rate after the public announcement of the public announcement of the public announcement of the public announcement, and the guarantee fee for the remaining guarantee period as of the date of cancellation of the public announcement of the public announcement of the public announcement of the public announcement is refunded. In cases where the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement is established, and the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement can be cancelled at any time before the occurrence of the insurance accident, and in such cases the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement of the public announcement can be cancelled.

1. Basic facts

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

A. The Plaintiffs are project undertakers who obtained approval for the housing construction project plan under Article 16(1) of the Housing Construction Promotion Act from the competent authorities, in order to construct and supply one complex apartment and two apartment complexes (hereinafter “each apartment of this case”) under the e-19-1 of Sung-dong, Sung-dong, Sung-dong, Sung-dong, 195-2.

B. On January 13, 2009, the Plaintiffs concluded a housing sale guarantee contract with the Defendant during the guarantee period from the approval date of the public announcement of invitation of occupants to the date of registration for the preservation of ownership (including the usage inspection), the guarantee creditor as the prospective occupants, and the scheduled date of inspection of use as of March 31, 201 (hereinafter “each of the instant housing sale guarantee contracts”).

C. On the same day, the Plaintiffs entered into an agreement with the Defendant to guarantee the Plaintiffs’ obligations under each of the instant housing sales guarantee agreements (hereinafter “instant housing sales guarantee agreement”), and paid the Defendant KRW 1,305,036,00 as the guarantee fee under each of the instant housing sales guarantee agreements, and KRW 2,930,842,00 as the guarantee fee under each of the instant housing sales guarantee agreements. The instant housing sales guarantee agreement provides for compliance with the Housing Act, the Enforcement Decree of the Dong, the Enforcement Rule of the Dong, the Rules on Housing Supply, the Rules on Housing Supply, the Articles of Incorporation and the Articles of Incorporation of the Defendant.

D. On January 14, 2009, the Plaintiffs obtained approval of the announcement of the recruitment of the Plaintiffs from the Gaman market for each apartment of this case under Article 8(1) of the Rules on Housing Supply.

E. However, the Plaintiffs did not publicly announce the recruitment of occupants pursuant to the Rules on Housing Supply.

F. On August 24, 2010, the Plaintiffs expressed to the Defendant the intention of cancelling each of the instant sales guarantee contracts on the grounds that there was no purchaser who was unable to publicly announce the recruitment of occupants on each of the instant apartment units, and requested the repayment of each of the guarantee fees already paid. However, on November 3, 2010, the Defendant rejected the return on the ground that the sales guarantee contract itself is valid and the approval of the public announcement of invitation is likely to occur until the public announcement of invitation of occupants is revoked.

G. On October 28, 2010 and December 17, 2010, the Yongsan-do mayor cancelled the approval of the announcement of the Plaintiffs respectively.

H. The Defendant calculated the guarantee fee for the remaining guarantee period, excluding the guarantee fee from the approval date of each public announcement of invitation to the date of cancellation of approval, and returned KRW 288,105,00 to KRW 472,152,00.

I. The provisions of the Housing Act, the Enforcement Decree of the Housing Act, the Rules on Housing Supply related to each of the instant sales guarantee contracts are as follows.

(1) According to the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009), the defendant shall perform the business of guaranteeing the sale of the housing constructed and supplied by the business entity, and matters necessary to carry out such business shall be prescribed by the Presidential Decree (Article 77(1)1 and (2)).

(2) According to Article 106 of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 23665, Mar. 13, 2012), matters regarding guarantee fees, etc. that the Defendant received at the time of the performance of the sale of housing or the guarantee that the Defendant is liable for the refund of the down payment and the intermediate payment, may be prescribed by the articles of incorporation (see paragraphs (1) and (2)), and the specific details of the Defendant’s guarantee, the scope of the Defendant’s guarantee, and the terms and conditions of the guarantee (see

(3) According to the former Rules on Housing Supply (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 225, Feb. 23, 2010), where a project proprietor has received a sales guarantee from the defendant, he/she may invite occupants at the same time as the commencement of the construction (Article 7(1)2(a)). A project proprietor shall invite occupants openly, and in this case, he/she shall obtain approval from the competent authority (Article 8(1)).

(4) Article 23(9) of the Defendant’s Guarantee Regulations (hereinafter “Guarantee Regulations”) provides for detailed matters regarding the method of calculating guarantee fees, refund, additional collection, etc.

According to the instant guarantee provision and its detailed enforcement rule, where a person applies for the cancellation of a guarantee before the guarantee becomes effective after the issuance of the letter of guarantee, he/she may cancel it and refund the guarantee fee already received (Article 24 of the Guarantee Regulations and Article 45(3) of the Enforcement Rule). In cases where a cause for termination prescribed by the detailed regulations occurs, such as where the principal obligation is extinguished, the guarantee shall be terminated, and where the guarantee is terminated within the guarantee period, the guarantee fee for the remainder of the guarantee period shall be refunded (Article 25 of the Guarantee Regulations and Article 45(4) of the Enforcement Rule). In cases of the guarantee for the sale of housing, "where the approval for the announcement of public announcement is cancelled due to reasons such as low-sale rate, etc., and the guarantee fee for the remaining guarantee period shall be refunded as of the date of cancellation (Articles 64(2) and 45(7) of the Enforcement Rule).

(5) According to the terms and conditions applicable to each of the contracts for guaranteeing the sale of housing in this case (hereinafter “instant terms and conditions”), the Defendant’s guarantee obligation is effective at the time the primary debtor obtains approval for the public announcement of invitation of residents within two months from the date of issuance of the letter of guarantee, and becomes effective from the date of the contract for the sale of housing (Article 2). In addition, the Defendant does not discharge the guaranteed obligation for the occupancy deposit paid by the person who entered into the contract for the

2. Object of the duty to explain;

A. (1) Article 3(3) of the Regulation of Standardized Contracts Act provides that “The business entity shall explain important matters of the terms and conditions so that customers can understand them.” Article 3(4) of the same Act provides that a business entity is obliged to explain the important matters of the terms and conditions to the business entity. In a case where a business entity entered into a contract in violation of the duty to explain the terms and conditions, the content of the terms and conditions should not be asserted as the content of the contract. The term “important contents” of the terms and conditions subject to the duty to explain refers to matters that may directly affect customers in determining whether or not to enter into the contract or their prices in light of social norms. What is an important contents in the terms and conditions can not be uniformly determined in light of individual circumstances in specific cases (see, e.g., Supreme Court Decision 2011Da69053, Feb. 15, 2013). However, recognizing the duty to explain the terms and conditions to the business entity is able to avoid any disadvantage that is not anticipated by the other party to the contract.

(2) A housing sale guarantee contract is a contract for a third party on condition that a guarantee agency is liable for the refund of the down payment and intermediate payment already paid by a buyer, or for the performance of the sale of a house, if the executing entity becomes unable to perform the obligation to supply a house under a sale contract (see Supreme Court Decision 2003Da45267, May 25, 2006). It is similar to a guarantee insurance in nature to a guarantee insurance. A guarantee insurance contract is a non-life insurance contract for which an insurer takes over the compensation of damages to be incurred by the insured due to the nonperformance of a policyholder’s obligation, and is formally and substantially aimed at the same effect as a guarantee contract with the nature of a guarantee (see, e.g., Supreme Court Decision 2004Da20265, Dec. 24, 2004). Therefore, a guarantee insurance contract has the nature of a guarantee and nature of an insurance, and both insurance and guarantee provisions are applied to the extent not contrary to its nature. This is also the same in a housing sale guarantee contract similar to a guarantee

B. The lower court rejected the Defendant’s assertion that each of the instant sales guarantee contracts was terminated in accordance with Article 25 of the instant guarantee agreement and Article 64 subparag. 2 of the Enforcement Rule, on the ground that the Defendant’s failure to explain or notify the Plaintiffs of the instant guarantee agreement and the detailed enforcement rules at the time of entering into the instant sales guarantee agreement and the housing sales guarantee agreement cannot be seen as the content of the instant sales guarantee agreement.

C. However, in light of the aforementioned legal principles and records, the lower court’s determination is difficult to accept for the following reasons.

(1) According to the instant guarantee provision and its enforcement regulations, in the event that a guarantee is returned after the approval for the announcement of invitation of residents is cancelled due to reasons such as low sale rate and the approval for the announcement of invitation of residents after the commencement of the guarantee period, the guarantee contract shall be terminated, and the guarantee fee for the remaining guarantee period shall be refunded as of the date of cancellation of the approval for the announcement of invitation of residents. As such, setting the guarantee fee for the remaining guarantee period when the contract for the guarantee of sale of a house is terminated within the guarantee period does not constitute changes in payment, exemption, exemption, Plaintiff’s liability, and the contents of the insured events. Therefore, it is difficult to view that the guarantee agency is a guarantee agency, or that the guarantee fee exceeds the limit permitted

(2) A house sale guarantee contract similar in nature to a guarantee insurance is also characterized by the nature of the guarantee and the nature of the insurance, and both the guarantee and the provisions of the insurance are applicable to the extent that its nature permits. Article 649 of the Commercial Act provides that a policyholder may terminate the whole or part of the contract at any time before an insured incident occurs, and in such a case, a policyholder may claim the return of the unpaid premium, unless otherwise agreed by the parties. The Defendant’s guarantee provision and the corresponding provisions of the enforcement rule can be deemed to be a provision of

(3) The pertinent provision of the instant guarantee provision and its implementation rule specifically indicate the reasons for the cancellation of the contract as it is difficult to achieve the purpose of the contract after the public announcement of invitation of invitation of residents and the cancellation of the guarantee period after the commencement of the guarantee period. As the effect of termination, only the guarantee fee for the remaining guarantee period shall be refunded. This constitutes a general and common transaction in the transaction, which can be sufficiently anticipated by the Plaintiffs, the other party to the contract, without the Defendant’s explanation.

(4) Therefore, the instant guarantee provision and the pertinent provision of its implementation rule are not an important content of the terms and conditions, and thus cannot be deemed as subject to the duty to explain.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine on the duty to explain the terms and conditions, thereby adversely affecting the conclusion of the judgment, on the premise that the pertinent provisions of the instant guarantee provision and its enforcement regulations are subject to the duty to explain, and thus, the Defendant did not explain them. The allegation contained in the grounds of appeal on this point is with merit.

3. Whether the principle of disadvantage of an originator is applied;

A. The interpretation of a standardized contract shall be interpreted fairly and reasonably in light of the purpose and purpose of the standardized contract in accordance with the principle of trust and good faith, and it shall be objectively and uniformly interpreted on the basis of the average customer’s understanding potential, without taking into account the intended purpose and intent of the individual contracting party. Even after the aforementioned interpretation, where the meaning of the standardized contract is unclear, such as where the standardized contract provision is objectively and objectively interpreted and its respective interpretation is reasonable, it shall be interpreted in favor of customers (see, e.g., Supreme Court Decisions 2009Da60305, Dec. 9, 2010). However, if the standardized contract provision is objectively and uniformly interpreted as a result of an average customer’s understanding possibility, it is not likely to interpret the standardized contract provision in favor of customers (see, e.g., Supreme Court Decisions 2007Da5120, Sept. 9, 2010; 200Da92841, Jan. 12, 2012).

B. On the grounds delineated below, the lower court determined that Article 64 subparagraph 2 of the Enforcement Rule is not applicable to the instant guarantee provision and its enforcement rule, as the principle unfavorable to the originator was applied to the instant guarantee provision and its enforcement rule.

Article 64 subparag. 2 of the Enforcement Rule of the Guarantee Regulations provides for “the low-sale rate for the purpose of public announcement for the reasons for cancellation of approval for the public announcement for the public announcement for the public announcement for the purpose of setting the “low-sale rate for the public announcement for the reasons for cancellation of approval for the public announcement for the public announcement for the public announcement.” The above provision is only premised on the case where the public announcement for the public announcement is actually made after the approval for the announcement for the public announcement for the reason

C. However, the lower judgment is difficult to accept for the following reasons.

(1) According to the Enforcement Rule and the terms and conditions of the Guarantee Regulations, the guarantee period of each of the instant contracts is from the time of obtaining approval for the announcement of invitation of residents to the date of registration for preservation (Article 55 of the Enforcement Rule). The Defendant’s guarantee obligation is effective at the time of obtaining approval for the announcement of invitation of residents, and it takes effect from the date of the contract for sale of housing (Article 2 of the Terms and Conditions). Since the guarantee obligation is established at the time of the occurrence of the primary obligation due to the nature of the establishment, the purport of the terms and conditions should be deemed that the guarantee obligation is established at the time

(2) According to the instant guarantee provision and its enforcement rule, where a guarantee contract is terminated while the guarantee period is in progress, the guarantee fee for the remaining guarantee period shall be refunded, and in the case of a guarantee for sale, it shall be based on the date of cancellation of the public announcement of invitation of residents (Article 45(4) of the Enforcement Rule).

(3) Article 64 subparag. 2 of the Enforcement Rule of the Guarantee Regulations provides that “the case of returning a guarantee certificate after the approval of the public announcement of invitation of residents is cancelled due to reasons such as the low sale rate, etc.” In this context, the reasons such as the low sale rate shall be one of the several reasons for the cancellation of the approval, which shall not be considered as the basis of interpretation that limits the reasons for cancellation of the approval

(4) Comprehensively taking into account the foregoing guarantee provisions, the enforcement rules, and the terms and conditions, each of the instant contracts is established on condition that the guaranteed obligation will accrue in the future when obtaining approval for the announcement of invitation of residents, and the guarantee period is from the time of approval for the announcement of recruitment of residents to the date of registration for the preservation of ownership. The guarantee period can be cancelled before the establishment of the guaranteed obligation and fully refunded the guarantee fee. However, after the establishment of the guarantee obligation, the guarantee can be terminated without asking whether the announcement of invitation of residents is made, and only can the guarantee fee for the remaining guarantee period be refunded

(5) Article 4(1)3 of the Terms and Conditions of this case provides that the person who entered into a housing sale contract prior to the public announcement of the invitation of occupants does not bear a guarantee obligation against the “person who entered into a housing sale contract prior to the public announcement of the invitation of occupants,” but such provision should be interpreted as a limitation on the scope of the guarantee obligation, even if the guarantee period has been commenced by open recruitment.

(6) Therefore, the instant guarantee provision and its enforcement rule are able to interpret the said objective and uniform interpretation in light of the language and structure, and do not have a multilateral interpretation. Therefore, the said provision and its enforcement rule do not apply to the principle of disadvantage for authors, as there is no room to interpret

D. Nevertheless, the lower court determined that Article 64 subparagraph 2 of the Enforcement Rule of the Guarantee Regulations applied to the principle unfavorable to the person who prepared the contract does not apply to the case where the announcement of invitation of residents was not made after obtaining approval of the announcement of invitation of residents as in the instant case. In so determining, it erred by misapprehending the legal doctrine on the interpretation of

4. Conclusion

The Defendant’s appeal is with merit without examining the remaining grounds of appeal, and the part 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 Lee Dong-won (Presiding Justice)