(영문) 대법원 2017.5.11.선고 2016다275990 판결

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In order for a contractual clause to be deemed null and void on the ground that it is a clause that is unreasonably unfavorable to a customer pursuant to Article 6(1) and (2)1 of the former Regulation of Standardized Contracts Act (amended by Act No. 10169, Mar. 22, 2010; hereinafter referred to as the “former Regulation of Standardized Contracts Act”), the contractual clause is somewhat disadvantageous to a customer. It is insufficient to say that the contractual clause is somewhat unfavorable to the customer. If the contractual contractor abused his/her position in a transaction to prepare and use the contractual clause against the legitimate interests of the contractual party and reasonable expectations, thereby impairing the sound trade order. Whether it constitutes “unfair unfavorable provision to a customer” should be determined by comprehensively taking into account all the circumstances, such as the content and probability of disadvantage that may arise to the customer according to the contractual clause, influence on the parties in the transaction process, and common provisions of related Acts and subordinate statutes, etc. (see, e.g., Supreme Court Decision 2008Da16481, Dec. 16, 2007).

2. In light of the following circumstances, the court below held that the sales contract of this case where Article 5 (1) of the sales contract of this case, which provides for the settlement of rental deposit according to the rent size of the store allocated after drawing lots, has lost fairness in violation of the principle of good faith, or has violated the duty to explain important contents of the terms and conditions to the defendant, which the plaintiff is the customer, so the above provision is null and void pursuant to the former Terms and Conditions Regulation Act, and thus, it should be revised to apply only within the scope of the increase or decrease of the public area in proportion to the increase or decrease of the exclusive use area.

① Article 10(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter referred to as the "Act on the Ownership and Management of Aggregate Buildings") provides that "the common use area belongs to co-ownership of all sectional owners," and Article 12(1) provides that "the shares of each co-owner shall be in proportion to his/her section of exclusive ownership." Since the common use area of a sectioned store actually complies with the ratio of the area of the section of exclusive ownership is trade practice, the increase and decrease of the common use area would be expected to be in proportion to increase and decrease in the area of exclusive ownership if the average and reasonable customer is in common use area. On the contrary, it is very exceptional that it is difficult to expect that the common use area should be allocated between the

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

③ Article 5(1) of the instant sales contract gives a business owner the right to unilaterally set standards for settlement after entering into a contract, so it is difficult for the purchaser to be unfairly disadvantaged in light of all relevant circumstances, such as the type of transaction of the contract, and it constitutes “a case where the seller grants a business owner the right to unilaterally determine or change the details of the payment without reasonable grounds” prescribed by Article 10 subparag. 1 of the former Act.

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

3. However, examining the following circumstances acknowledged by the court below in accordance with the above legal principles, even if Article 5 (1) of the sales contract of this case is interpreted in accordance with its language, it cannot be deemed as "a standardized contract which has lost fairness in violation of the principle of trust and good faith", and it cannot be deemed that the plaintiff violated its duty to explain under the former Standardized Contracts Regulation Act at the time of conclusion of the sales contract of this case

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

① The Plaintiff, on September 2002, entered into a general execution contract for the reconstruction project with the said reconstruction association, pursuant to which the Plaintiff entered into a general execution contract for the reconstruction project. The Plaintiff entered into a contract with the said reconstruction association on an overall execution of the reconstruction project.

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

③ On April 29, 2008, the Plaintiff entered into the instant sales contract with the Defendant to sell the right of lease on the instant store.

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

B. According to the Aggregate Building Act, a common area, excluding a partial common area, belongs to the co-ownership of all sectional owners (Article 10(1)), and each co-owner’s share is in accordance with his/her ratio of the area of his/her section for exclusive use (Article 12(1)), and such matters may be separately determined by regulations (Article 10(2)). In real transaction, where each co-owner’s share in the common area is not in proportion to the area of his/her section for exclusive use. In the case of a large-scale commercial building in which a large number of divided stores are located, the value of each individual store may vary considerably depending on the location, and thus, reflecting the passage area adjacent to the relevant store in calculating the common area, which serves as the basis for a rental deposit, cannot be deemed as

C. In the case of the instant commercial building, 1/2 of the passage area abutting on each sectioned store in calculating the sale area is included in the official area of the relevant store, and the remaining public area was included in the official area of each sectioned store in proportion to its exclusive use area. This is not unilaterally determined for the benefit of one party, such as the business operator, etc., as matters determined through an extraordinary general meeting to resolve unfair trade among the reconstruction members who were in the position to be determined by the location of their own store through a lot of lot.

Furthermore, in light of the language, content, system, etc. of Article 5(1) of the sales contract of this case, it is evident that the rental deposit out of the sales contract of this case should be settled according to the leased area added to the exclusive use area. In addition, the above contents are general and common in the transaction, and thus, the Defendant also knew or could have anticipated it.

4. Nevertheless, the court below held that the construction of Article 5 (1) of the sales contract of this case in accordance with its stated reasoning is invalid in light of the purport of the former Act on the Regulation of Terms and Conditions, and thus, it should be interpreted that the rental deposit in the sales contract of this case should be computed at an increase or decrease rate of exclusive use area. Thus, the court below erred in the misapprehension of the judgment of the Supreme Court as stipulated in Article 3 (2) of the Trial of Small Claims Act. The ground for

5. Therefore, the part of the lower judgment against the Plaintiff 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.