Attached 1. List 3, 11, 15, 17, 18, 19, 22, 25, 27, 32, 38, 41, 48, 49, 53, 55, 57, 59, 65, 66, 74, 79, 80, 81, and 87 (State 1) of the Plaintiff list.

1. Of the plaintiffs listed in the plaintiff's list, the remaining plaintiffs except the above appellees and incidental appellants (Law Firm LLC, Attorneys Park Jong-jo et al., Counsel for the plaintiff-appellant)

Korean Epiz Co., Ltd. (Attorneys Park Im-sung et al., Counsel for the plaintiff-appellant)

April 14, 2017

Seoul Central District Court Decision 2015Kahap539029 Decided June 30, 2016

Plaintiff, Appellant and Appellant

Attached 1. 3, 11, 15, 17, 18, 19, 22, 25, 27, 32, 38, 41, 48, 49, 53, 55, 57, 59, 65, 66, 74, 79, 80, 81, 19, 25, 27, 38, 48, 49, 53, 57, 59, 65, 66, 74

1. The judgment of the court of first instance is modified as follows.

(a) Attached 1. List 2, 3, 8, 10, 11, 15, 17 through 25, 27, 28, 29, 32, 36, 37, 41, 46, 49, 55, 57, 61, 63, 65, 67, 67, 67, 71, 74, 79, 81, 81, 81, 82, 87, 86, 27. 36, 86, 27. 86, 36, 67, 67, 27. 86, 36, 47, 67, 278, 36. 86, 205, 36, 37. 86, 165, 205, 27. 2, 361, 278. 2, 36. 3

B. The plaintiffs' respective claims listed in Nos. 1, 4, 5, 6, 7, 12, 26, 30, 34, 35, 39, 40, 42, 43, 44, 47, 50, 52, 54, 60, 75, 76, 77, and 85 of the same list, and the remaining claims of the plaintiffs listed in Paragraph A. are dismissed, respectively.

2. Of the total cost of litigation between the plaintiffs and the defendant as stated in Paragraph 1-A, the part arising between the plaintiffs and the defendant as stated in Paragraph 1-B shall be borne by the above plaintiffs, the remainder by the defendant, respectively, and the part arising between the plaintiffs and the defendant as stated in Paragraph 1-B shall

3. Paragraph 1(a) of this Article may be provisionally executed.

[Claim]

The defendant shall pay to the plaintiffs 15% of the amount per annum from the day after the day of service of a copy of the complaint of this case to the day of complete payment with regard to each corresponding amount and each of the above amounts stated in the attached Table 2 "request amount".

【Purpose of Appeal】

The part against the defendant among the judgment of the first instance is revoked, and the plaintiffs' claims corresponding to the above revocation are dismissed.

[Purpose of Incidental Appeal]

Of the judgment of the court of first instance, the part against the plaintiffs listed in the table 3, 11, 15, 17, 18, 19, 22, 25, 27, 32, 38, 41, 48, 53, 55, 57, 59, 65, 66, 74, 79, 80, 81, and 87 attached Table 1. The defendant shall revoke the part against the plaintiffs, which corresponds to the part ordering payment under the following among the judgment of the court of first instance. The defendant shall pay to the above plaintiffs 6% per annum from 1. to 30.6.6% per annum from the next day to June 30, 2016 and 15% per annum from the next day to the day of full payment.

1. Facts of recognition;

A. The relationship between the parties

The Plaintiffs are each franchisees who operate Huin Ba (hereinafter “instant franchise store”) listed in the “Name of Unjust Enrichment 2” column of the attached Table 2 with the right to operate a franchise store using the trademark, trade name, business system, etc. of “Pizza” from the Defendant. The Defendant is a franchisor that grants each franchise license to the Plaintiffs and receives compensation therefor.

(b) Conclusion and details of the franchise agreement;

In order to operate each of the instant franchise stores, the Plaintiffs entered into the franchise agreement with the Defendant on the relevant date stated in the “the date of concluding the franchise agreement” in the table of unjust enrichment stated in attached Table 2, and some of the Plaintiffs implicitly or implicitly renewed the franchise agreement after the initial franchise agreement (hereinafter collectively referred to as the “instant franchise agreement”). The main contents of the instant franchise agreement are as shown in attached Table 3.

C. Payment by the plaintiffs under the instant franchise agreement

1) At the time of entering into the instant franchise agreement, the Plaintiffs paid the first franchise fee (i.e., USD 45,500, USD 22,400, and USD 22,400, there is a difference in the amount of the first franchise fee depending on the store types, such as Lestop Specialized Store and Delivery Special Sales

2) As to the instant franchise agreement, the Defendant calculated fixed fees (e.g., royalties, 6% of total revenue), raw material expenses, call center expenses, and other expenses (all kinds of fees, import machine, goods, goods expenses, NSO activities, POS/FA maintenance fees, etc.) on the basis of the monthly total revenue of each member store included in the sales collection system, and then prepared a written claim for payment stating the amount by item, and then sent the written claim to the Plaintiffs no later than the fifth day of the following month. The Plaintiffs paid fixed fees and various expenses to the bank account in the name of the Defendant designated by the Defendant (in cases of large-scale, no later than the tenth day of the following month), by the due date for payment (hereinafter referred to as “payment” in total and all fixed fees and various expenses paid according to the monthly claim”).

(d) Payment of druptures;

The Plaintiffs paid to the Defendant the amount claimed under the item of the “SCM Adm” (hereinafter “Administ”) in its written claim for payment in accordance with the attached Table 4 with respect to the payment claimed by the Defendant under the item of “SCM Adm” (hereinafter “the pertinent month”). In the following month of each corresponding month, the Plaintiffs paid each corresponding amount in the “the amount of the Administration Fee” as described in the said paragraph (c).

(e) Preparation of written agreements;

From April 20, 2012, the Defendant was drafted and issued a new franchise agreement or a new franchise agreement to renew the existing franchise agreement (hereinafter “instant agreement”). Some of the Plaintiffs (excluding the Plaintiffs) concluded or renewed the instant franchise agreement with the Defendant on the pertinent day as stated in the “Date of Preparation and Preparation of the Agreement” in the attached Table 2 of Unjust Enrichment 2, and made and issued the instant agreement to the Defendant (which is indicated as the “Renewal”, even though there were persons who prepared the instant agreement during the instant franchise agreement period, they also indicated as the renewal separately from the new one.

This Agreement contained in the main text of this Agreement (hereinafter referred to as the “Agreement”) was concluded on the 2000 October 200 between the Korea Epiz Ba LLC (hereinafter referred to as the “PHK”) with its main office in Gangnam-gu, Seoul. The following Article 1 / [Purpose] PHK and the braille ○○○, in concluding (including transfer) vain franchise agreement (hereinafter referred to as the “IFA”), shall determine Admin. Fe as an agreement in addition to the franchise agreement entered into on 2000, 2000. Article 2 / [1] Admin. Fe is part of the expenses incurred in purchasing agency, marketing, operation of CF, computer support, customer consultation office, etc. 2). The payment rate of AFD is set at 10% of the annual interest rate and 5% of the expenses incurred in relation to the 5th annual interest rate and 10% of the expenses incurred in relation to the 5th annual interest rate and 10% of the expenses incurred in arrears.

[Grounds for recognition] 1, Gap 2, 3, 5-12, 15-18, 20, 22, 24-36, 38-52, 55-60, 62-65, 67, 68, 70-74, 76-78, 80-82, 86, 88, 91-94, 96, 98, 10-10-13, 115, 117-129, 1329, 25-142, 265-2, 265-2, 265-2, 264, 265-2, 27, 36-129-2, 141, 143, 146-15-15, 157, 158-16-16-718-17

2. The parties' assertion

A. The plaintiffs' assertion

1) According to the instant franchise agreement, the Plaintiffs are paying the Defendant the fixed fee, raw material cost, call center cost, advertising cost, etc., including the Administration Fee each month. While all the remaining items except Administration Fee, among the price, are stipulated under the instant franchise agreement, there is no ground to impose the obligation to pay to the Plaintiffs anywhere in the instant franchise agreement in the case of Administration Fee.

2) The Defendant created a language item without any basis under the instant franchise agreement, and obtained profits equivalent thereto from the Plaintiffs, and thereby, the Plaintiffs sustained damages equivalent to the same amount. While operating each of the instant franchise stores, the Plaintiffs paid the Defendant an amount equivalent to each of the amount indicated in the “amount claimed” column in the attached Table 2 of the unjust enrichment table to the Defendant. Accordingly, the Defendant is obligated to return the amount corresponding to each of the above “amount claimed” to the Plaintiffs as unjust enrichment.

B. Defendant’s assertion

1) The Administration Fee that the Defendant received from the Plaintiffs is the so-called “Franchising Support Fee,” which is the consideration for support affairs related to the purchase, marketing, business planning, quality control, computer, accounting, etc. provided by the Defendant to the Plaintiffs who are franchisees (hereinafter “Franchis Support Fee”), and is based on Article 2.3 of the instant franchise agreement (hereinafter “instant provision”).

In addition, at the time of concluding the franchise agreement, the Defendant prepared an information disclosure statement stating that the Administration Fee will be imposed on the franchisee as part of the fee, and registered with the Fair Trade Commission on August 29, 2008, and the said information disclosure statement was accessible to the Plaintiffs. The Plaintiffs, who wished to conclude the instant franchise agreement with the Defendant, knew that the Administration Fee will be imposed prior to the conclusion of the contract.

2) Even if there is no explicit basis on the Administration Fee in the instant franchise agreement, there exists an implied agreement between the Plaintiffs and the Defendant on the Administration Fee. In other words, the Defendant provided an information disclosure statement prior to entering into a franchise agreement with the Plaintiffs, and knew that the Administration Fee is imposed at the expense of the Administration Fee, each month, sent to the Plaintiffs a written claim indicating the imposition rate of the Administration Fee and its specific amount, and notified the Plaintiffs of the change in the composition of the Administration Fee and the imposition rate through the RGM NET, which is the Indiannet. The Plaintiffs informed of the fact that the Administration Fee was imposed, have paid the Administration Fee while using the Defendant’s service without raising any problem for a long time, so it can be deemed that an implied agreement between the Plaintiffs and the Defendant on the Payment of the Administration Fee was established.

3) Some of the Plaintiffs drafted the instant agreement with the Defendant on the imposition and imposition rate of the Administration Fee. At least there is an express agreement on the Administration Fee with respect to some of the Plaintiffs who prepared the instant agreement.

4) Therefore, it is without merit that there is no legal ground for the Plaintiffs’ assertion regarding the support duties of franchise stores that the Defendant provided to the Plaintiffs in accordance with the instant franchise agreement. Even if the Plaintiffs’ assertion is acknowledged, the extinctive prescription has expired since three years, the short-term extinctive prescription under the Civil Act, or five years, the commercial extinctive prescription. In addition, the Plaintiffs have a duty to return this amount to the Defendant unjust enrichment because they obtained profit by reducing the expenses that the Plaintiffs should have spent when they performed the above duties by giving the Defendant acting on behalf of the Defendant. If there is a claim for return of unjust enrichment against the Defendant, the Defendant expressed its intent to offset this amount by the amount of the claim for return of unjust enrichment against the Plaintiffs.

3. Occurrence of claim for return of unjust enrichment;

A. Whether there are grounds for the payment of the Administration Fee under the instant franchise agreement

1) The instant provision

The fact that the Administration Fee is indicated as the item "SCM Adm" in the claim for the price, the initial franchise fee, fixed fee, raw material cost, call center cost, advertisement cost, which is imposed on the plaintiffs, has no explicit basis provision on the franchise agreement of this case, and there is no explicit basis provision on the Administration Fee, and the payment of the franchise agreement under Articles 2.1 and 2.2 is the price for the right granted as specified in Article 1.1 and is the price for the franchise business operator (the name of the defendant)'s specific obligation or service performance, not the price for the franchise business operator (the name of the defendant). As such, the contents of the franchise agreement of this case are merely that the initial franchise fee and fixed fee of this case do not include the defendant's consideration for the provision of a specific service. Thus, it cannot be immediately claimed for the payment of the Administration Fee without any explicit ground on the sole basis of the provision of this case.

(2) Information disclosure statement

According to the overall purport of the statements and arguments in Eul 4 and 10 evidence, the defendant registered an information disclosure statement under the Fair Transactions in Franchise Business Act (hereinafter "Franchising Business Act"), among the registered information disclosure statement, "IV franchisee's burden, 2.2. business burden, 1. charge, and 4.5% of monthly sales" to the franchisee as "member store service fee," and the plaintiff 13 received e-mail sent from the defendant on August 22, 201, prior to the conclusion of the instant franchise agreement. Meanwhile, Articles 6-2, 6-3, and 6-4 of the Franchis Business Act provide that the franchisor shall be obliged to register the information disclosure statement to the Fair Trade Commission on August 29, 2008, and where the franchisor refuses or makes a false statement on such information disclosure statement, Article 11 (1) and (2) of the Franchis Business Act provides that the franchisor may first provide the franchise fee prior to the date of receipt of the franchise agreement, including the franchise fee.

In full view of the registration system and the purport of the Franchise Business Act to prevent adverse effects that may arise due to imbalance between a franchiser and a prospective franchisee or a franchisee in franchise business, and to protect the rights and interests of prospective franchisees and franchisees in a relatively unfavorable position, an information disclosure statement constitutes a device to protect prospective franchisees or franchisees. However, the information disclosure statement itself cannot be deemed part of a franchise agreement. However, even if the information disclosure statement was registered with the Fair Trade Commission on August 29, 2008 and was issued by the Defendant to prospective franchisees before the franchise agreement was concluded, if the information disclosure statement stating the matters concerning the franchise volume was not explicitly included in the franchise agreement, it cannot be deemed that the matters concerning the franchise volume stated in the franchise disclosure statement were the content of the franchise agreement in this case. Accordingly, it is insufficient to view the information disclosure statement alone as a ground for imposing the franchise volume, and there is no evidence to acknowledge this otherwise. The Defendant’s assertion in this part is without merit.

3) Sub-determination

Therefore, the instant franchise agreement cannot be deemed to have agreed on the payment of the Administration Fee based on the instant provision or the information disclosure statement.

B. Whether an implied agreement was reached with respect to the payment of the Administration Fee

1) In general, for the formation of a contract, there is a requirement that the opposite expression of intent, such as offer and acceptance, is consistent with the other party’s expression of intent. However, such expression of intent may be made implicitly and implicitly as well as explicitly expressed. Meanwhile, in any case, whether a contract may be deemed to have been concluded through an implied expression of intent shall be determined in accordance with logical and empirical rules, by comprehensively considering a series of acts or attitudes taken by the parties, motives and developments leading to implied agreement, the details of such agreement, etc., in line with the ideology of social justice and equity (see, e.g., Supreme Court Decision 2011Da30765, Sept. 29, 201).

2) According to the purport of Gap 2, Eul 275, Eul 3, 4, 10, 11, 15, 19, 20, 23 through 26, Gap 2, Eul 2, 275, Eul 2, 100, 200, 205, 20% of the sales revenue of 50, 20% of the above 207, 20% of the sales revenue of 5, 30,000, 5,000,000,000,000,000,0000,000,000,000,000: 5,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000).

However, as in the case of this case, when a franchisor that provides franchisees with strong business marks essential for the success of business and various resources has sufficient opportunity and negotiating capabilities to clearly arrange the contents of the agreement through a very detailed pre-written statement prepared, more careful consideration should be given to recognize that there exists an implied agreement on the contents of the agreement unfavorable to the franchisee in addition to the explicit contract. The facts of recognition under paragraph (1) and the facts of recognition under paragraph (1) do not constitute an implied agreement between the Plaintiffs and the Defendant, taking full account of the following facts recognized by adding up the whole purport of the pleadings to the testimony of the Non-Party witness at the trial and the circumstances of ratification.

A) An information disclosure statement registered with the Fair Trade Commission is nothing more than providing information for a person who intends to enter into a franchise agreement, and it cannot be deemed that the contents stated in the information disclosure statement are immediately incorporated into the terms and conditions of the agreement, and it does not clearly state that “franchise service fees” are remuneration for any service

B) The materials that the Defendant provided to franchising applicants in the business explanation session or the original testing session are specific expenses, and there is no explanation on the method of calculation.

C) Even if the Plaintiffs received such information from the Defendant, the instant franchise agreement concluded by the Plaintiffs does not explicitly state the Administration Fee. Therefore, it cannot be readily concluded that the Plaintiffs intended to pay the Administration Fee even if they received such information, but did not explicitly state such information in the instant franchise agreement.

D) On January 2003, the Defendant first introduced the Administration Fee to 0.34% of the sales amount on the basis of the purchase cost. However, on April 2003, the Defendant determined the sales amount to 0.65% by adding marketing expenses. From December 2003, the sales amount to 0.6%, and from December 2004, the Defendant changed the rate to 0.5% of the sales amount by adding quality control, computer processing, and call licensing expenses to the purchase business and marketing business. From April 20, 2012, the Defendant changed the rate to 0.8% of the sales amount to 0.8%. However, there were no other reasons to view that franchisees, including the Plaintiffs, were specifically aware of the addition of expenses for the Administration Fee, the basis for calculating the rate, etc., constituting the Administration Fee, or that franchisees were allowed to arbitrarily determine the organization and rates of the Administration Fee, and there were no other reasons to view that the Plaintiffs were no changes in the rate after the Administration Fee.

E) Although the Defendant asserts that at the time of the introduction of the Administration Fee or at the time of the change of the Administration Fee rate, consultation with the Council representing franchisees was conducted with respect to the imposition of Administration Fee or the change of the Administration Fee rate, there is no evidence to deem that a substantial consultation was conducted with the representative of franchisees.

F) The Defendant’s written request for the payment is written with the Administration Fee. However, the Defendant prepared a written request for the payment of individual and specific services provided for the operation of the franchise store by dividing them into very detailed parts. It seems difficult for the Plaintiffs to readily understand that the Administration Fee stated as “SCMm” is one of the multiple items of payments written in English, including the cost item, and is a franchise store service fee entered in the information disclosure statement or the original test data. The Plaintiffs seem to have known the Administration Fee as one of the other items of expenses up to a hundred thousands.

The defendant asserts that other expenses incurred by the defendant among the expenses incurred by the services provided by the defendant are individual member stores, while the Administration Fee is a cost of a nature that cannot be calculated separately for each member store because it occurred over the whole store and the Administration Fee is a cost of a nature that cannot be calculated separately for each member store. However, it is difficult to view that the plaintiffs clearly recognized such difference, or that they agreed to separately claim the costs incurred for services by

G) Article 23.1 of the instant franchise agreement stipulates to the effect that the pertinent agreement includes both the parties’ agreement on the principal terms and conditions of the agreement. In light of this, if a new agreement is reached between the parties on the principal terms and conditions of the agreement, it is anticipated that the franchise agreement will be amended or a separate written agreement will be prepared.

C. Whether the agreement of this case is valid

1) The plaintiffs' assertion

The agreement of this case shall not take effect for the following reasons.

① According to Article 23.9 of the instant franchise agreement providing that “In the event a dispute arises in connection with the interpretation of this agreement and its translation, the English version shall prevail,” the contents of the instant franchise agreement shall not be the contents of the franchise agreement. ② Since the Defendant’s failure to prepare the agreement in the course of the preparation is de facto authorized to express any disadvantage, it constitutes an act contrary to social order under Article 103 of the Civil Act or an unfair act under Article 104 of the Civil Act, or an expression of intent by coercion shall be cancelled in accordance with Article 110 of the Civil Act; ③ the act of preparing an unfair agreement by abusing the Defendant’s superior position constitutes an unfair act prohibited under the Franchise Business Act; ④ the contents of the terms and conditions, or the duty to explain has not been fulfilled.

2) Determination

A) As to the preferential argument in English contract

Article 23.9 of the franchise agreement of this case is merely the purport that the English version shall take precedence over the interpretation of the translation of the contract, and the validity of the agreement of this case prepared separately from the franchise agreement of this case cannot be denied on the ground of the above provision. The plaintiffs' assertion in this part is without merit.

B) As to the assertion of anti-social order

There is no evidence to acknowledge that the agreement in this case constitutes an act of anti-social order pursuant to Article 103 of the Civil Act or an unfair act pursuant to Article 104 of the Civil Act, or the plaintiffs' assertion that the agreement in this case should be null and void as it constitutes an unfair act pursuant to Article 110 of the Civil Act, or that it should be revoked as an expression of intent by coercion pursuant to Article 110 of the Civil Act, is groundless.

C) As to the assertion of unfair practices under the Franchise Business Act

(1) Relevant provisions of the Franchise Business Act

Article 2 subparag. 2 and 3 of the Franchise Business Act defines “franchiser” as “business operator who has obtained a franchise license from a franchiser in connection with a franchise business,” and “intending franchisees” as “persons who consult or consult with a franchiser or a regional headquarters in order to conclude a franchise agreement.” Meanwhile, Article 12(1)3 of the Franchise Business Act prohibits “act of unfairly giving franchisees disadvantage by taking advantage of transactional position” as unfair trade practices. Article 13(1) and attached Table 2 of the Enforcement Decree of the Franchise Business Act prohibits “act of unfairly compelling franchisees to bear expenses” under Article 13(1) and 3(b) and (c) of the Enforcement Decree of the Franchise Business Act, “act of unfairly compelling franchisees to bear expenses” under Article 3(1) and 3(b) and (c) of the Enforcement Decree of the Franchise Business Act, “act of establishing or altering a contract clause unfavorable

(2) In the case of new contract plaintiffs:

First of all, we examine the Plaintiffs (in the case of Plaintiffs 37, the relation to “○○○○○○”, the relation to “△△△△△△△△” in the case of Plaintiffs 5, the relation to “△△△△△△△” in the case of Plaintiffs 62, and the relation to “△△△△△△△△” in the case of Plaintiff 62, and the relation to “△△△△△△△△△” in the case of “△△△△△” in the case of the Plaintiff corporation, which was in the position of prospective franchisees at the time of drafting

The Franchise Business Act prohibits a franchisor from taking advantage of the economic superior advantage of the franchise agreement. Here, a franchisee, who is granted a franchise license from a franchisor, is presumed to enter into a franchise agreement with a franchisor, and thus, a prospective franchisee who fails to enter into a franchise agreement does not constitute an unfair trade practice. This is because a prospective franchisee may freely decide on whether to enter into a franchise agreement after examining various conditions of a franchise agreement including the establishment of a franchise store. This is because a prospective franchisee cannot be said to have the legal status of a franchisee who is subject to continuous detention of a franchise agreement by entering into a franchise agreement with a franchisor. Therefore, the Defendant’s drafting of the instant agreement with the Plaintiffs of a new franchise agreement constitutes part of the conditions of a franchise agreement to be considered in determining whether to enter into a franchise agreement, and thus cannot be said to have been disadvantaged by the Plaintiffs of a new contract. This part of the allegation by the Plaintiffs of a new contract is without merit.

(3) In the case of re-contractors:

Next, we examine the Plaintiffs (in the case of Plaintiff 55, the Plaintiffs related to △△△△ Point; hereinafter “Plaintiffs”) falling under the “Renewal” indicated in the “Renewal” column at the time of preparation and preparation of the agreement” of the attached Table 2, which was in the status of franchisees at the time of preparation of the instant agreement.

In light of the contents of the instant franchise agreement and the terms and conditions of the Plaintiffs and the Defendant’s transaction, the re-contract Plaintiffs, a franchisee, are in a transactional relationship fully dependent on the Defendant, such as payment of expenses, such as franchise fees, to the Defendant for the use of the Defendant’s business marks, etc., and support, education, and control of overall management and business activities, such as trade name, trademark, packaging, and design,

However, in full view of the facts acknowledged earlier, Gap evidence 2, Eul evidence 3, 5, and 11 obtained by adding the whole purport of pleadings, and the following facts acknowledged by the defendant, the defendant's act of preparing and receiving the agreement of this case from the plaintiffs of the re-contract is an act of unfairly bearing the expenses to be borne by the defendant to the plaintiffs of the re-contract, or an act of setting or modifying the contract terms under clearly unfavorable conditions than the previous transaction terms in the course of contract renewal, and it is difficult to deem that there is a risk of undermining fair trade order in franchise business. Accordingly, it does not constitute an unfair trade practice prohibited by the Franchise Business Act. Accordingly, this part of the plaintiffs' assertion is without merit.

(A) The instant franchise agreement defines Administration Fee as “part of the expenses incurred in purchasing agency, marketing, CER operation, computer support, and customer counseling room operation, etc.” The Plaintiffs claim that the Defendant, a franchisor, is the minimum human resources, physical facilities, and business activities that the Defendant should have to conduct a normal franchise business, and that the payment is included in the initial franchise fee or fixed fee under the instant franchise agreement. However, the Defendant unfairly imposed the Administration Fee under the name of Administration Fee, separate from the fixed fee without any ground, and imposed the Plaintiff newly on the franchisee under the instant franchise agreement, and thus, constitutes an alteration of the terms and conditions of the instant franchise agreement under a clearly unfavorable condition than the previous transaction. Therefore, whether the above consideration for the foregoing business is included in the initial franchise fee and fixed fee.

(1)In addition to the statement in Gap evidence 2, Article 1.1 of the franchise agreement provides that "Franchisor shall grant franchise agreement operators the system and system property and the right to use marks only in relation to the implementation of the project in accordance with the terms and conditions of this Agreement," Article 2.1 provides that "any franchise agreement operator shall pay the initial franchise fees specified in Appendix B before the date of granting franchise agreement or before that date" and Article 2.2 provides that "the franchise agreement operator shall pay fixed fees to the franchise operator. Each fixed fee shall be accompanied by the gross revenue contract in the form designated by the franchise operator from time to time for the pertinent fiscal period." Article 2.3 provides that "the payment of franchise operators pursuant to Articles 2.1 and 2.2 shall be for the rights conferred as specified in Article 1.1 and shall be for the franchise operator's specific obligations or services to the franchise operator and shall not be for consideration for the implementation of the franchise operator's business," Article 2.1 provides that "the full text of the franchise agreement shall include the system operated of this case as well-known and food service together with the concept of the franchise and the product.".

According to the above facts, the first franchise fee and fixed fee paid to the Defendant by the franchise agreement in accordance with the franchise agreement in this case is interpreted as the price for "the right to use the system and system property and mark in connection with the performance of franchise business", namely, the right to use the mark, trade secret, copyright, design, patents, other intellectual property owned by the Defendant, the content of guidelines, and other know-how, information, specifications, systems and data for family members in a clean and sound atmosphere by using the mark, trade secrets, copyrights, intellectual property, other know-how, information, specifications, systems and data, etc. Accordingly, since the price for business, such as purchase agency, marketing, management, computer support, customer counseling room provided by the Defendant, is not included in the scope of the original franchise fee or fixed fee, the Plaintiffs’ assertion that all of the above business was paid by the first franchise or fixed fee cannot be accepted.

(B) The plaintiffs asserts that since the defendant, a franchisor, has human resources and physical facilities and has continuous efforts to develop quality control and sales techniques, and has a franchisee provide continuous advice and support to run a franchise store, management for operating a franchise store, business activities, and operation of a customer counseling room, it is unreasonable to impose expenses on the plaintiffs, a franchisee, on whom the defendant is the franchisor, as a support for the plaintiffs' business activities.

As alleged by the plaintiffs, some of the activities of buying agency, marketing, CER operation, computer support, and customer counseling center operation are deemed to fall under the Defendant’s inherent business to maintain the Defendant’s system. As seen earlier, the Plaintiffs paid fixed fees through the instant franchise agreement and granted the Defendant’s right to use the system maintained through the Defendant’s above activities, and thus, it would be unreasonable to bear all of the expenses incurred therein.

However, some of the above businesses, at least, the defendant's purchase agency, inventory management, marketing activities by individual member stores, customer complaint handling by individual member stores, night or on holidays, supervision agency, etc. are deemed to be for the business of a franchisee. The duties of the defendant, who is the franchisor, in the franchise agreement in this case, are stipulated as the duties of the franchisee. "The obligation of the franchisee, in accordance with the terms and conditions of this contract, to grant the franchisee the right to use the system and system property and marks only in relation to the performance of the business (Article 1.1)", "the obligation to provide, or allow the franchise contractor to provide, initial and intermediate education and support deemed appropriate (Article 7), to take all appropriate measures to protect and defend the mark and system property (Article 8.4), and the obligation of the defendant, the franchisor, was not agreed to perform the business of the franchisee (Article 8.4).

In addition, the Franchise Business Act provides that "the business plan for the success of franchise business, the continuous efforts for the quality control of commodities or services and the development of sales techniques, the installation of store facilities, the provision of commodities or services to franchisees with reasonable prices and expenses, the education and training of franchisees and their employees, the continuous advice and support for the management and business activities of franchisees, the prohibition of establishing a direct store within a franchisee's business area or a franchise store for a type of business similar to that of a franchisee within a franchise agreement, and the settlement of disputes through dialogue and negotiation with a franchisee" as a matter to be observed by the franchisor. Accordingly, even if following the above, it shall not be deemed that the franchisor has the obligation to support the business activities of franchisees by performing the above duties

Therefore, the defendant is entitled to receive expenses related to the duties performed for the business of the franchisee among the affairs related to purchase agency, marketing, CER operation, computer support, and customer counseling center operation.

(C) Meanwhile, there are many cases where the defendant's business and the franchisee's business are mixed in the purchase agency business, marketing, CER operation, computer support, and customer counseling room operation, and where the business and the franchisee's business are not specified, the defendant's business among the business expenses are likely to be calculated at a certain ratio of total sales because it is difficult to individually calculate the part related to the franchisee's business among the business expenses, and thus, its calculation method is not unreasonable. Moreover, there is no evidence to deem that the amount of drid's business computed at 0.8% of total sales as consideration for the above business provided to the franchisee to the franchisee is excessive compared to the service provided to the plaintiffs, or that the total fee rate received by the defendant, including drid's business, is particularly higher than that of other same kind.

The Plaintiffs asserts to the effect that determining the cost of new items irrelevant to the instant franchise agreement would be disadvantageous to the Defendant, regardless of the Defendant’s provision of services to the Plaintiff. However, if the Plaintiffs’ assertion, the franchisor’s offering of a new service for franchisees and promising to receive the cost therefrom cannot be permitted as an unfavorable modification to an existing contract. This would be contrary to the principle of private autonomy that the parties freely determine the terms and conditions of the agreement, and further, preventing the modification of the initial terms and conditions of the contract in the contract that is relatively long-term and guaranteed with the right to renew the contract would make it impossible to respond flexibly to the demand of the consumers in the changing market, and ultimately, damage therefrom would be attributed to the franchisees. Therefore, it cannot be interpreted as the Plaintiffs’ assertion.

(D) Although the Plaintiffs did not know the specific calculation method, they entered into the instant franchise agreement after being notified of the fact that the franchise store service fee is imposed through the information disclosure statement, prospectus, and original data, and considering the fact that the rate is 0.55% or 0.8% of the total sales, the Plaintiffs entered into the instant franchise agreement after taking into account the fact that the said calculation method was not known, and the instant agreement was made. Meanwhile, the rate of the franchise fee that the Plaintiffs paid to the renewal of the agreement before and after the preparation of the instant agreement is not changed.

(E) The Plaintiffs asserted that the instant agreement provides that the rate of the Administration Fee may be adjusted in the future. However, if the proceeds have deteriorated due to the decline in the game, the Defendant arbitrarily raised the rate of Administration Fee, and thereby, it would result in compelling only franchisees to disadvantage.

The facts that the Defendant had not obtained consent from, or agreed with, franchisees in the process of adopting, the Administration Fee and determining its rates are as seen earlier. However, the agreement of this case itself that the Defendant explicitly stated that “0.8% standard rate may be adjusted through bilateral consultation in consideration of all the circumstances, such as the future inflation rate,” and that the Defendant calculated the rate in a reasonable manner, was in a timely manner, and was maintained without changing the prescribed rate for a considerable period of time, cannot be concluded to have raised the rate at will, and it cannot be said that the agreement of this case itself that explicitly agreed to adjust the rate by consultation with, the Administration Fee cannot be deemed unfair.

(F) In addition, the Plaintiffs asserts that the Defendant’s imposition of the Administration Fee only on a franchise store without imposing the Administration Fee directly exceeds the costs incurred in the direct retail store and constitutes an unfair coercion. However, the Defendant appears to have calculated the Administration Fee for the part arising in connection with the individual franchise store in the affairs of purchase agency, marketing, CER operation, computer support, and customer counseling center operation, and insofar as it is not proven that the Administration Fee calculated by 0.8% of the sales exceeds the costs incurred in relation to the individual franchise store during the above affairs, it cannot be deemed that the costs incurred in the direct retail store solely on the ground that the Administration Fee does not impose the Administration Fee.

D) Regarding the plaintiffs' assertion of violation of the Act on the Regulation of Terms and Conditions

(1) Whether it constitutes an unreasonably unfavorable clause

(A) Under Article 6(1) of the Act on the Regulation of Terms and Conditions (the provision that loses fairness in violation of the principle of trust and good faith) and Article 6(2)1 (see, e.g., Supreme Court Decision 201Da21864, Jun. 12, 2014) of the Act on the Regulation of Terms and Conditions, in order to be deemed null and void on the ground that the terms and conditions are unfairly unfavorable to customers, such terms and conditions are not sufficient to the effect that they are unreasonably unfavorable to customers. The fact that the standardized contract terms and conditions are somewhat unfavorable to customers. The standardized contract terms and conditions contractor abused his/her position in transaction, and prepares and uses clauses that are contrary to equity against the legitimate interests and reasonable expectations of the contracting parties, thereby impairing sound trade order. Whether the terms and conditions are “unfairly unfavorable to customers” constituting grounds for the invalidation of the standardized contract should be determined by comprehensively taking into account all the circumstances such as the contents and probability of disadvantages that may arise to customers by the standardized contract terms and conditions, influence between the parties, and relevant provisions (see, etc.).

(B) According to the statement in Eul evidence No. 5, the plaintiffs are recognized to have written their names and affixed seals on the instant agreement prepared and presented by the defendant. Thus, the instant agreement constitutes a standardized contract under the Act on the Regulation of Terms and Conditions, which is unilaterally prepared by the defendant in advance for the purpose of including in the franchise agreement.

However, as seen earlier 3.C.(2)(c)(3) and contrary to the allegations of the plaintiffs, it cannot be deemed that allowing the plaintiffs to sign and seal the instant agreement at the time of entering into the instant franchise agreement without reasonable grounds to unilaterally determine or change the content of the performance, and thus, it cannot be deemed that the instant agreement constitutes “a clause of the terms and conditions which lose fairness contrary to the principle of trust and good faith” prohibited under the Act on the Regulation of Terms and Conditions.

(C) Meanwhile, under the process of concluding the instant franchise agreement, prospective franchisees should rent a store for franchise business prior to the conclusion of the instant franchise agreement. When the Defendant requested the instant franchise agreement to additionally prepare the instant agreement, it cannot be practically refused by any prospective franchisees who already invested a large amount of capital, and such circumstance is the same as the existing franchisees who already invested a business by investing capital. Thus, it is unreasonable to in effect compel the instant agreement to be prepared at the time of the instant franchise agreement, and therefore, it is therefore unfair to the effect that the instant agreement constitutes an unreasonably unfavorable provision prohibited under the Act on the Regulation of Terms and Conditions.

① However, even if it is assumed that there exists any unreasonable ground in the process of concluding the instant franchise agreement as alleged by the Plaintiffs, such circumstance alone cannot be deemed to constitute “unfairly unfavorable clause” in the instant franchise agreement. ② At the time of concluding the instant franchise agreement, the Plaintiffs would have decided free will to conclude the instant franchise agreement after comprehensively examining the various conditions of the instant franchise agreement, including drids, as stipulated in the instant franchise agreement. ③ The reasons alleged by the Plaintiffs are issues that may occur in the instant franchise agreement itself, and even if there were some capital inputs for renting a store before concluding the franchise agreement, a prospective franchisee may operate the instant franchise agreement at a shop leased with another franchisor, if it is determined that the terms of the instant franchise agreement would be disadvantageous, such circumstance alone is difficult to deem that concluding the instant franchise agreement at the same time and concluding the instant franchise agreement would be unreasonable, ④ The Plaintiffs would not have any particular difference in terms of the terms and conditions established in the instant franchise agreement or rather have any disadvantage to the Plaintiffs, and rather, the Plaintiffs would not have been subject to the instant renewal of the terms and conditions, rather than the Plaintiffs’ obligation to pay the instant franchise agreement.

(2) Violation of duty of explanation

The plaintiffs did not fully explain the contents of the Administration Fee, including that at the time of the preparation of the instant agreement, a franchisee’s business, such as purchase, etc., is a franchisee’s business or a franchisee does not pay Administration Fee when the franchisee directly performs the above business. Thus, the defendant asserts that the defendant cannot assert the agreement of this case as the content of the instant agreement pursuant to Article 3(3) and (4) of the Act on the Regulation of Terms and Conditions.

However, if the purport of the entire argument is added to the evidence Nos. 24, 25 and 26, the defendant explained that the amount of the sales amount should be imposed as the service fee of a franchise store. When entering into a new franchise agreement, the information disclosure statement stating that the service fee of a franchise store calculated by the rate of 0.8% of the sales amount among the franchise stores is imposed, and the information disclosure statement stating that the service fee of a franchise store is imposed, among the franchise stores, was provided to the franchisee and explanation of various expenses borne by the franchisee. The plaintiffs already paid the franchise, and the fact that the agreement of this case has already already been written only on the payment of the franchise. The duty of explanation under Article 3(3) of the Act on the Regulation of Terms and Conditions is to prevent the customer from being disadvantaged by entering into a contract under the terms and conditions with the prior knowledge of the contents to be bound by each party, and to protect the customer by preventing any unexpected disadvantage (see, e.g., Supreme Court Decision 2015Da5194, Jun. 23, 2016).

D. Sub-committee

1) There is no basis for imposing the Administration Fee under the instant franchise agreement, and there is no implied agreement on the Payment of the Administration Fee. Thus, barring any special circumstance, it is reasonable to view that the Defendant received the Administration Fee from the Plaintiffs without any legal cause, and thereby, caused damages equivalent to the same amount to the Plaintiffs. However, the instant agreement can be the basis for imposing the Administration Fee, and thus, the Administration Fee received thereafter by the Defendant cannot be deemed as unjust enrichment.

2) Therefore, the Defendant is obligated to return the amount equivalent to the total amount of the Administration Fee received from the Plaintiffs to the Plaintiffs who did not prepare the instant franchise agreement, and to the Plaintiffs who prepared the instant franchise agreement with the renewal of the instant franchise agreement, the amount of the Administration Fee received before the formation of the instant franchise agreement, as unjust enrichment. In concluding the instant franchise agreement, the Plaintiffs who prepared the instant franchise agreement did not have the obligation to return the amount of the Administration Fee received to the Plaintiffs.

4. Scope of return of unjust gains;

A. Calculation of unjust enrichment

The above 6, 3, 10, 11, 13, 15, 17, 19, 20, 21, 22, 23, 25, 27, 29, 32, 36, 37, 46, 46, 48, 49, 53, 56, 57, 57, 57, 61, 62, 67, 67, 67, 78, 78, 78, 78, 78, 78, 78, 78, 78, 78, 9, and 5 of the above 6, 2, 36, 37, 46, 57, 61, 62, 67, 67, 70, 78, 789, 78, and 5 of the above 6, 19.

B. As to the plaintiff 69's claim

If the statements in Gap 170 and 256 are added to the purport of the entire pleadings, it is recognized that the plaintiff 69 operated the franchise store in the name of the principal from November 1, 201 to the defendant from the time when the franchise store in this case was operated, and that the defendant paid the franchise fee to the defendant from the time when the franchise store in this case was operated. The plaintiff 69 asserted that the defendant paid the franchise fee to the defendant while operating each of the franchise in this case under the name of the other party prior to the date when the franchise store was operated, but there is no evidence to acknowledge it. Accordingly, the plaintiff 69'

C. The judgment on the Defendant's defense of extinctive prescription against Plaintiffs 3, 11, 15, 17, 18, 19, 22, 25, 27, 32, 38, 41, 48, 49, 53, 55, 57, 59, 59, 65, 66, 74, 79, 80, 81, and 87

1) The defendant's assertion

The defendant asserts that part of the above plaintiffs' claim for return of unjust enrichment has completed the short-term extinctive prescription or commercial extinctive prescription for three years under the Civil Act.

2) Determination

A) Article 64 of the Commercial Act shall apply or apply mutatis mutandis to claims arising from commercial activities as well as claims corresponding thereto (see, e.g., Supreme Court Decision 2002Da64957, 64964, Apr. 8, 2003). The Plaintiffs’ claim for return of unjust enrichment against the Defendant was derived from the Defendant’s imposition on the Plaintiffs of the Administration Fee under the pretext of supporting fees for franchise stores under the instant franchise agreement, and the payment of the Administration Fee that the Plaintiffs are not obligated to pay. As such, the Defendant’s claim for return of unjust enrichment is basically based on the act between merchants. In light of the developments leading up to and the cause of the occurrence of the claim, etc., the period of extinctive prescription is five years pursuant to Article 64 of the Commercial Act (see, e.g., Supreme Court Decision 2006Da63150, May 31, 2007).

On the other hand, the Defendant asserts that the short-term extinctive prescription of three years ought to be applied on the ground that the Administration Fee is paid for each month. However, even if the Administration Fee, which was the cause of unjust enrichment, was paid for a period of not more than one year, the claim for return of unjust enrichment itself cannot be deemed as “claim for the Payment of Money or Goods within a period of not more than one year” and thus, the short-term extinctive prescription period under Article 163 subparag. 1 of the Civil Act cannot be applied. The Defendant’s above assertion is without merit.

B) The aforementioned claim for return of unjust enrichment is a claim without a fixed period of time due, and the extinctive prescription is run simultaneously with the establishment of the said claim. The extinctive prescription period for the claim for return of unjust enrichment against the Defendant of the said Plaintiffs ought to run from the time when they were paid to the Defendant each month, as indicated in the attached Table 4 Efdial Payment. Since it is apparent in the record that the instant lawsuit was filed on June 18, 2015, barring any special circumstance, the part of the claim for return of unjust enrichment against the Defendant, which was paid to the Defendant before June 18, 2015, which was five years retroactively and retroactively passed from June 18, 2010, was extinguished.

C) Therefore, the extinctive prescription of the claim for return of unjust enrichment corresponding to each of the corresponding “the amount of the Administration Fee” stated from each of the above Plaintiffs’ first payment dates to May 2010 was completed. The Defendant’s defense is with merit within the scope of recognition as above. Ultimately, the claim by the above Plaintiffs is with merit from June 2010.

D. Judgment on the defendant's defense of set-off

The plaintiffs' act of purchasing agency, marketing, CER operation, computer support, and customer counseling room operation on behalf of the defendant is as above. It is clear in light of the empirical rule that the plaintiffs obtained monetary benefits. However, it is insufficient to recognize that the plaintiffs' profit gained is a larger amount than the total amount of the Administration Administration Fee that the plaintiffs paid to the defendant. There is no assertion or proof by the defendant as to the specific amount of the profits they acquired. Therefore, the defendant's argument for offset is without merit without any need to further examine.

E. Sub-decision

Therefore, the Defendant’s return of unjust enrichment to Plaintiffs 2, 3, 8, 10, 11, 17, 19, 20, 21, 23, 24, 27, 29, 32, 36, 37, 46, 48, 49, 53, 56, 57, 27, 27, 27, 27, 29, 27, 37, 37, 37, 37, 37, 37, 46, 48, 49, 57, 57, 61, 67, 67, 67, 67, 67, 78, 78, 78, 78, 78, and 5 of the instant judgment on Plaintiffs 1, 65, and 2, 67, and 5 of the Plaintiff’s annual complaint against Plaintiffs 1, 6, and 5.

5. Conclusion

Therefore, the plaintiffs 2, 3, 8, 10, 11, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 29, 32, 36, 37, 38, 41, 46, 48, 49, 49, 55, 56, 57, 59, 61, 62, 63, 67, 69, 70, 71, 78, 788, 788, 87, and 188, respectively, shall be dismissed, and the remaining claims of the plaintiffs and the others shall be dismissed within the scope of their respective claims, as they are reasonable.

[Attachment Omission]

Judges Yoon Sung-sung (Presiding Judge)

1) The order in the list of plaintiffs is maintained in the same manner as the list of plaintiffs in the judgment of the first instance.

2) The entry as of July 1, 2016 in the commander of the military unit submitted by the above plaintiffs seems to be a clerical error.

3) The amount of the first instance court’s award against Plaintiffs 22, 49, 57, and 87 is deemed to have been mistakenly written due to Osan. Thus, the damages for delay on the exceeding portion of the cited amount in the appellate court shall be calculated as well as the remaining parts.

4) The “debt arising out of commercial activity” to which the statutory interest rate in commercial activities under Article 54 of the Commercial Act applies includes not only the debt directly arising out of the commercial activity but also the debt identical thereto or the debt recognized as modified thereto (see Supreme Court Decision 2009Da41786, Sept. 10, 2009). In this case, it is reasonable to deem that in this case, the Plaintiffs’ return of the royalty paid to the Defendant company as unjust enrichment, and thus, it constitutes a debt identical to the debt arising out of the commercial activity or a debt recognized as modified, and thus, the said Defendant’s above obligation to return the unjust enrichment is subject to the statutory interest rate in commercial activities under Article 54 of the Commercial