In a case where Gap et al. purchased Byung's airline tickets on the website operated by Eul corporation, and requested cancellation of purchase of airline tickets and refund disposition within seven days after the settlement of airline tickets, but Byung company refunded only the amount excluding penalty for breach of contract from the price of airline tickets, and Eul company did not refund the airline tickets agency fees, the case holding that the provision of the penalty for refund which provides that even if the consumer lawfully exercises the right to withdraw subscription within seven days from the terms and conditions on the refund penalty for breach of contract, the refund penalty which provides that the refund penalty shall be deducted from a certain amount and the refund penalty shall

Although Gap et al. purchased Byung's airline tickets on the website operated by Eul corporation and requested the cancellation of purchase and refund of airline tickets within 7 days after the settlement of airline tickets, Byung company only refunded the amount excluding penalty from the price of airline tickets to Gap et al., and Eul company did not refund airline tickets.

In cases where Gap et al. lawfully cancelled an order pursuant to the Act on the Consumer Protection in Electronic Commerce, Etc. (hereinafter "Electronic Commerce Act"), Eul company must return the purchase price as a mail order distributor who is a contracting party, and Byung company is not a contracting party, but is jointly and severally obligated to return the price within the scope of the price it has received pursuant to Article 18 (11) of the Electronic Commerce Act, and the legislative purport of the Electronic Commerce Act and the text of the provision related to the right to cancel an order, the right to cancel an order recognized as to the previous door-to-door sales, etc. is extended to mail order, and the period is reduced and defined, the importance of electronic commerce is rapidly increased due to the development of the Internet and mobile, and the meaning of the provision of the simple mandatory law, barring special circumstances, such as the agreement that limits consumers' right to cancel an order, which is obviously unfavorable to consumers, and thus, it should not be easily interpreted that the provision is invalid from the date of cancellation of an order to return the price within seven days of cancellation of an order.

Articles 13(2), 17(1) and (2)3, 18(2), (9), and (11), and 35 of the Act on the Consumer Protection in Electronic Commerce, Etc.

Plaintiff 1 and one other (Attorney Lee Jong-soo, Counsel for the plaintiff-appellant)

Web speculative Co., Ltd. and one other (Attorneys Kim Jong-seok et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2017Gaso7387480 Decided April 27, 2018

September 12, 2018

1. Of the judgment of the court of first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

For the plaintiffs, the defendant web service corporation shall pay 210,00 won each and 15% interest per annum for them from August 23, 2017 to the day of full payment. The defendant Asian Corporation shall jointly and severally pay 200,000 won each of the above money and 15% interest per annum for them from August 23, 2017 to the day of full payment.

2. The plaintiffs' remaining appeals against the defendants are all dismissed.

3. All costs of the lawsuit are borne by the Defendants.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to each of the Plaintiffs the amount of KRW 210,000 and the interest rate of KRW 15% per annum from August 22, 2017 to the date of full payment.

1. Basic facts

On August 9, 2017, the Plaintiffs promised two aviation tickets in Asia or 601, which arrive at Australia (hereinafter “instant aviation tickets”) from the website “htp” (htp:/www.webour.com) operated by Defendant Webcom Co., Ltd. (hereinafter “State”). On September 25, 2017, the Plaintiffs promised two aviation tickets in Asia or 601 (hereinafter “instant aviation tickets”).

On August 10, 2017, the following day, Defendant Web (State) announced the Plaintiffs on August 10, 2017, that the seat of the instant airline ticket was secured, the waiting condition was resolved, and that the reservation was automatically cancelled if the payment was not made by August 11, 2017. Accordingly, the Plaintiffs paid the air ticket price by credit card on August 10, 2017. The Plaintiffs paid the air ticket price by KRW 2,344,400 (= individual 1,172,200 x 200) (= individual 1,172,200 x 200) under the name of the air fare. The Plaintiffs issued the electronic airline ticket immediately after the settlement was made.

On August 16, 2017, the Plaintiffs asked Defendant Weber (owner) of whether or not there was any commission or penalty when cancelling the purchase of airline tickets by disclosing his intention to cancel the purchase of airline tickets. The Defendant Weber (owner) respondeded to the effect that “in the event of cancellation, there is a refund fee of KRW 220,000 won per airline’s penalty, KRW 10,000 won per airline’s ticket, KRW 10,000 won per air service agency fee, KRW 10,000 won per capita.”

On August 17, 2017, the Plaintiffs: (a) made a request on August 17, 2017, using Defendant Web (main week)’s 1:1 counseling coaches; and (b) made a withdrawal of offer pursuant to the Act on the Consumer Protection in Electronic Commerce, Etc. (hereinafter “Electronic Commerce Act”); and (c) made a request on the revocation and refund of airline tickets to “within seven (7) days after the settlement of airline tickets; and (d) made a request on the cancellation and refund of airline tickets.”

On August 31, 2017, Defendant Asia (State) refunded only KRW 1,944,200,000, excluding penalty of KRW 400,000,000, out of the air ticket price of KRW 2,344,200, to the Plaintiffs, and Defendant Webcomer (State) did not refund KRW 20,000,00,000.

[Reasons for Recognition] Unsatisfy, each entry in Gap evidence 1 to 8 (including virtual numbers), and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The plaintiffs withdrawn the offer to purchase the airline tickets of this case pursuant to Article 17 (1) of the Electronic Commerce Act, and the defendant Web operator has to refund the airline ticket price within three business days from the date of cancellation of the order, but has not paid 420,000 won up to the present day, so the plaintiff must pay 420,000 won and damages for delay. The defendant Asiana or Aeronautical is not a party to the transaction, but is a person who has received the airline ticket price and is jointly and severally liable for the return of the above price pursuant to Article 18 (11) of the Electronic Commerce Act.

B. The defendant's web speculation (State)'s assertion

The defendant web speculative service is merely an enterprise that sells airline tickets on behalf of the defendant, and the amount of airline tickets has been received by the defendant Asiana (State) and the penalty for refund has been notified as prescribed by the defendant Asiana (State). Therefore, the defendant web speculative service is not responsible for this.

20,000,000 won paid by the Plaintiff to the Defendant Web proprietor, as the price for the delivery of the service is completed as a price for the delivery of the service by proxy, it cannot be cancelled pursuant to Article 17(2)5 of the Electronic Commerce Act.

C. Defendant Asia (State)’s assertion

Defendant Asia is not a party to the aviation ticket purchase contract, and is not a party to the aviation ticket purchase contract, and is not jointly and severally liable for the refund of the price of Defendant Web Port (State).

On August 9, 2017, the date when the plaintiffs received the documents regarding the terms of the contract, and the withdrawal period of cancellation was exceeded since the plaintiffs cancelled the contract on August 17, 2017, which was seven days after the date of reservation.

In addition, considering the fact that the Plaintiffs purchased airline tickets at a large discount price on the condition that they bear the differential refund penalty for the remainder of the period from the start date, and that the remaining period from the start date falls under 21 to 40 days and the penalty is imposed by a penalty of 200,000 won for the said period, which is not excessive compared to the purchase price, and that in the case of airline tickets, the passage of time is difficult to resell, the agreement on the refund penalty for breach of contract between the Plaintiffs and the Defendant Webcomer does not fall under the case of “favorable to the consumers” as stipulated in Article 35 of the Electronic Commerce Act.

3. Determination

(a) The subject of responsibility to return the price following cancellation of order;

The Defendants dispute that they are not liable for the return of the price due to the cancellation of an order under the Electronic Commerce Act, and therefore, we examine who is the subject of the return of the price. In this case, the Defendants are different from the provider of air passenger transportation services (the Plaintiff, the airline) indicating the subject of the purchase, and the person who sells airline tickets (the Plaintiff, the traveler) and the person who sells airline tickets (the Plaintiff, the traveler). Therefore, the Plaintiffs should first examine who concluded the airline ticket purchase contract.

In full view of the purport of the arguments in Gap evidence 1 to 8 and Eul evidence 2 to 4, the plaintiffs purchased the airline tickets of this case on the web site of defendant web service. The above web site includes both the price and content of the airline ticket (the date and time of flight, the seat type, the information on boarding, etc.), the contract terms on the purchase of airline tickets (the payment method, the future change, the fee in exchange, etc.) and the contract terms on the purchase of airline tickets are all made on the above web site. Both the reservations and the settlement are made on the above web site. The defendant web service provider requested the right to issue the airline ticket with the name of the plaintiffs in payment from the plaintiffs and sent the ticket to defendant Asian (State) and the case where the defendant web service provider did not request the plaintiff to purchase the airline ticket of this case to exchange the airline ticket to the plaintiff's web service (the plaintiff's web service provider) and it is not necessary for the plaintiff to directly purchase the airline ticket of this case or to directly purchase it from the plaintiff's web service (the plaintiff's web service provider).

In addition to these circumstances, in the case of electronic commerce, the consumer is trying to modify or cancel the contract after the right of commercial origin at the website that has entered into an electronic commerce transaction. Considering that this is consistent with the protection of the consumer and the general transaction concept, it is reasonable to view that the party to the instant air ticket purchase contract is the party to the instant air ticket purchase contract, and Defendant Asiaa Aeronautical is the subject to the obligation to provide services to the customer who holds the tickets issued by the Defendant Web Port (State) under the contract with the Defendant Web Port (State).

In addition, among the purchase price of the airline tickets in this case, the airline ticket portion is directly paid in the future of Defendant Asia (State) and the airline ticket sales commission is paid in the future of Defendant Web (State), but its total amount is considered to be the price for the airline ticket purchase contract regardless of its name (in the event that a merchant sells an object, it is not the difference between the price for the goods and the sales activity, and the price for the goods and the sales activity is included in the sales price, and it is not the difference between the price for the goods and the sales activity) and the price for the goods are paid directly by the Defendant Web Port (State) for convenience.

Therefore, in the event that the plaintiffs lawfully withdrawn an order in accordance with the Electronic Commerce Act, the defendant web operator is a mail order distributor who is a contracting party, and the defendant Asiana and the air carrier is not a contracting party, but is jointly and severally liable with the defendant web operator within the scope of the price he received pursuant to Article 18 (11) of the Electronic Commerce Act.

On the contrary, the above defendant's assertion that it is impossible to withdraw the part due to the termination of mail order, as long as it was generated as it is a power supply agency service by the defendant web operator, or it is merely an agent of the defendant Asiana Aviation (ju) or the sales by the defendant web operator, cannot be accepted.

B. Whether the Plaintiffs withdrawn subscription within the period of withdrawal of subscription

According to Article 17(1)1 of the Electronic Commerce Act, a consumer who has entered into a contract for the purchase of goods, etc. with a mail order distributor shall cancel the contract within seven days from the date of receipt of the document concerning the terms of the contract under Article 13(2). However, where the supply of goods, etc. is delayed than the time of receipt of the document, the consumer shall cancel the contract within seven days from the date of receipt of the goods, etc. supply or commencement of the supply. Meanwhile, Article 13(2) of the same Act provides that, upon the conclusion of the contract, the mail order distributor shall deliver the document concerning the terms of the contract, including the supplier, information on the goods, exchange, return,

According to the above facts, the plaintiffs' payment of purchase price and the issuance of electronic air tickets are August 10, 2017, and at that time, the contract for the purchase of air tickets between the plaintiffs and the defendant web operators was concluded. Thus, when the electronic air tickets are issued to the plaintiffs, the document concerning the terms of the contract or the supply of goods, etc. under the proviso of Article 17 (1) shall be deemed to have been made, and the plaintiffs expressed their intent to withdraw subscription on the website of the defendant web operators within seven days from that time, and thus, the period for the cancellation of subscription under the Electronic Commerce Act shall be deemed to have been complied with.

Defendant Asia’s Republic of Korea asserts that the period of cancellation of an order from August 9, 2017, when the plaintiffs promised to withdraw an order is calculated as of July 7, 2017. However, it cannot be deemed that the period of cancellation of an order can be concluded without any restriction, and that the period of cancellation of an order is calculated from August 9, 2017, as alleged by the above Defendant, even if the period of cancellation of an order is calculated from August 9, 2017, the Plaintiffs sought on the refund from Defendant Webcomer (owner) on August 16, 2017, within seven days, and notified that the penalty for refund of KRW 220,000 per head is imposed, as seen earlier, it unfairly limits the right to withdraw order (the agreement that imposes a refund penalty is invalid after cancellation of an order) and thus, it cannot be seen that the act of interference with the cancellation of order can be seen as being an act of interference with the withdrawal of order within seven days from the date of cancellation of order (Article 17(1) of Korea Aviation Act).

C. Whether the provision on a refund penalty is invalid

1) The Electronic Commerce Act grants a consumer who has entered into a purchase contract with a mail order distributor the right to escape from the binding force of the contract within seven days through the cancellation of order (Article 17), and in such case, the mail order distributor shall return the price, regardless of the reasons therefor (Article 18(2)), and shall not file a claim for penalty or damages on the ground of cancellation of order, etc., in addition to the expenses necessary for the return of the goods, etc. supplied (Article 18(9)). Article 35 of the Electronic Commerce Act provides that the agreement in violation of the above provision and is disadvantageous to the consumer is invalid

According to the above facts, the terms and conditions of the contract on the refund penalty for the airline ticket of this case are invalid because they are disadvantageous to consumers in violation of the provisions on the cancellation of order under the Electronic Commerce Act (Article 18 (9), especially Article 18 (9)).

2) As to this, Defendant AsiaAAAA provides that “The agreement violating the provisions of Articles 17 through 19 of the Electronic Commerce Act and disadvantageous to consumers shall not be effective.” This states that, in applying the provisions of cancellation of an order to all types of business without any condition, there are many adverse effects when applying the provisions of cancellation of order to all types of business, or there is a risk of undermining the soundness of the market, even if the agreement contrary to the mandatory laws and regulations, the agreement is not effective only when it is disadvantageous to consumers, considering all the circumstances of each individual case, and then, to assess the validity of the agreement so that it can be evaluated as effective. The Plaintiffs sufficiently informed about the provision of penalty, consented to the agreement, and purchased aviation rights at a price much lower than that set than that set forth above, this asserts that it is no more unfavorable to the Plaintiffs.

However, Article 35 of the Electronic Commerce Act provides that, in cases where an agreement is made differently from the Electronic Commerce Act, such agreement is more favorable to consumers (e.g., where the period of cancellation of order is longer than seven days) and that such agreement is invalid only if it is valid and unfavorable to consumers, and it does not mean that this is based on substantial and non-payment for each individual case, such as Defendant Asiana (U.S.)’s assertion. The previous provision on protecting tenants, debtors, guarantors, etc., who are economically disadvantaged parties has also been stipulated in the same language and text (Article 10 of the Housing Lease Protection Act, Article 15 of the Commercial Building Lease Protection Act, Article 4(4) of the Commercial Building Lease Protection Act, Article 11 of the Special Act for the Protection of Surety, etc.).

The Electronic Commerce Act was enacted in 2002 to establish a fair transaction order and protect consumers with respect to the electronic commerce transaction and mail order, and recognized a new right to withdraw an application without any condition recognized in the existing door-to-door sales and multi-level marketing. The purport of recognizing a consumer's right to withdraw an application was to recognize a consumer's right to withdraw an application for a new mail order. The purpose of recognizing a consumer's right to withdraw an application is to maintain a superior position compared to a consumer in the transaction between a consumer and a business operator in terms of information, economic power, decision of terms and conditions of a contract, etc., and to make it easy for a consumer to freely decide whether to purchase a contract by a business operator's active recommendation, rather than to decide whether to purchase a contract with a consumer with a business operator. Under such circumstances, it would rather discriminate against a consumer and to make it unfair, so that the consumer can easily escape from the relevant contract relationship in the event of a change of the purchaser's intention after concluding a contract. However, this right was newly recognized in order to minimize consumer damage caused by a rapidly increase mail order.

Considering the legislative purport of the Electronic Commerce Act and the text of the provision related to the right to withdraw an application, and the history of the provision related to the right to withdraw an application for a door-to-door sales, etc., which was recognized as the previous door-to-door sales, and the details leading to the shortening the period, the importance of electronic commerce is rapidly increasing due to the Internet and mobile development, and the meaning of the provision on mandatory enforcement of a certain area, an agreement that restricts consumers’ right to withdraw application as prescribed in Articles 17 and 18 of the Electronic Commerce Act shall not be readily construed as valid unless there are special circumstances, such as

According to the above facts and evidence, the plaintiffs confirmed the fare rules specified in the refund provision and agreed to do so, and they purchased the tickets of this case in KRW 1,172,100 per sheet (the air fare of KRW 1,035,90 and the tax and public charges of KRW 136,200 per sheet). The plaintiffs purchased the tickets of this case in KRW 1,172,100 (the air fare of this case and the tax and public charges of KRW 136,200). The normal fare of this case is reduced to 3,372,00 won, and the right of aviation with the refund penalty of KRW 3,372,00 is reduced compared to the ticket of air, in the case of the airline right, and there is the characteristic that there is the opportunity to resell after the lapse of time compared to the general goods and services, and there is a fact that international airlines discount

However, the plaintiffs exercised the right to withdraw the air ticket on August 17, 2017, which is 7 days from the date of purchase of the airline ticket, and it remains 40 days or remaining from September 25, 2017, which is 40 days from the date of departure to September 25, 2017 (it is difficult to view that the plaintiffs have a big difference in the possibility of resale of the airline ticket between the time of purchase of the airline ticket and the time of withdrawal). The plaintiffs' right to withdraw the airline ticket is limited to only within the short period of 7 days, which is 7 days. In the case of the airline ticket, it is more likely for the consumers to purchase the airline ticket, and the fact that the plaintiffs received the notice of the right to withdraw the airline ticket and purchased the airline ticket to protect the consumers who do not make a rational decision. Thus, the plaintiffs' right to withdraw the airline ticket are not subject to restrictions on the right to withdraw the air ticket, and there is no room to view that it constitutes a penalty for cancellation prior to the date of withdrawal.

Although Defendant Asia Asia argues that the Fair Trade Commission's notice related to the Electronic Commerce Act provides that the penalty for refund shall be valid, administrative rules such as the Fair Trade Commission's notice shall be deemed null and void if it goes beyond the delegation scope of the law. Therefore, even if the Consumer Protection Guidelines of the Fair Trade Commission and the criteria for the settlement of consumer disputes interpret that the penalty for restricting consumers' right to withdraw subscription is valid, it cannot be said that the penalty for breach of the law becomes effective

All Defendant Asia’s assertion of the Republic of Korea cannot be accepted.

4. Conclusion

Therefore, the plaintiffs are liable to pay damages for delay calculated at the rate of 15% per annum under Article 18(2) of the Electronic Commerce Act and Article 21-3 of the Enforcement Decree of the same Act from August 22, 2017 to the date of full payment, respectively, to the plaintiffs, and to pay damages for delay from August 18, 2017 to August 22, 2017, jointly and severally with the defendant Web Port operator (owner) for the payment of 200,000 won received by the defendant Asia and air (owner) among the above money, and each of them shall be liable to pay damages for delay calculated at the rate of 15% per annum from August 22, 2017 to August 21, 2017. However, the defendants are not liable to pay damages for delay from the date of cancellation to August 21, 208 to August 21, 201; thus, they are not liable to pay damages for delay from August 21, 2017 to the next day.

The plaintiffs' claims against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed. Since the part against the plaintiffs corresponding to the above amount in the judgment of the first instance is unfair with different conclusions, it shall be revoked and the payment order shall be issued to the defendants. The remaining appeals against the plaintiffs against the defendants shall be dismissed for lack of grounds, and the plaintiffs' claims shall be dismissed for small amount of claims, the total costs of the lawsuit shall

Judges Song Human Rights (Presiding Judge)

1) Unlike the case of door-to-door sales, in the case of mail order, there is very little possibility for consumers to purchase goods, etc. as a result of a door-to-door sales transaction by being committed by a door-to-door sales and a door-to-door sales. Therefore, if the period for withdrawing an application without any condition is acknowledged to be too long, it was considered that there is a risk of undermining the safety of transaction, increasing the economic cost of an electronic commerce business operator, thereby undermining the activation of electronic commerce. See the legislative bill of the Electronic Commerce Act (No. 160722) and the review report and minutes of the Committee.

Note 2) In the instant case, the charge provision of this case’s airline ticket is differentiated depending on the period from the date of cancellation to the date of departure. The charge provision of this case’s airline ticket is set differently for the period from the date of departure. 91 days prior to the date of departure, 10,000 won prior to the date of 90 days to 61 days, 20,000 won prior to the date of departure, 280,000 won prior to the date of departure, 20 to 11 days prior to the date of departure,