[1] Whether a standardized contract clause excluding an enterpriser's obligation to return interest in returning money already received upon contract rescission is invalid (affirmative), and where an enterpriser decides to return money in addition to interest, the method of determining whether the additional interest rate is invalid as being unfair

[2] In a case where the issue arises as to whether the part of the terms and conditions under which "where a contract for sale in lots is rescinded, the seller shall refund to the buyer an interest equivalent to 2% per annum from the date of receipt to the date of refund, adding an interest equivalent to 2% per annum to the date of refund," which provides that the interest rate of 2% per annum in the terms and conditions constitutes Article 9 subparagraph 5 of the Regulation of Standardized Contracts Act, the case holding that it is difficult to view that the above additional interest rate portion

[1] Article 9 of the Regulation of Standardized Contracts Act provides that "any clause of a standardized contract concerning the cancellation or termination of a contract which falls under any of the following subparagraphs shall be null and void." Article 548 (2) of the same Act provides that "any clause of a standardized contract concerning the cancellation or termination of a contract which unreasonably reduces the business operator's obligation to restore or compensate for damages due to the cancellation or termination of the contract." Since Article 548 (2) of the Civil Act provides that interest shall be added to the money to be returned when the contract is terminated, the contract clause excluding the obligation to return interest in return of the money already received by the business operator due to the cancellation of the contract is presumed to be unfair and void because it is presumed that the contract clause excluding the obligation to return interest is unfair and unfavorable to the customer. However, if the contract is to be returned with interest added, the interest rate shall not be set at a rate higher or lower than the statutory interest rate, and it shall be determined in full view of the intent and purpose set up the pertinent standardized contract, ordinary transaction practices in the pertinent business type, goods or service, business needs of the business operator, and the degree of disadvantage to customers.

[2] In a case where the issue is whether the part of the standardized contract that stipulates 2% interest rate for the money to be returned by the seller to the buyer is invalid as it falls under Article 9 subparagraph 5 of the Act on the Regulation of Terms and Conditions, among the standardized contract clauses stipulating that "where a sale contract is cancelled, the buyer shall refund to the buyer an interest equivalent to 2% per annum from the date of receipt of the standardized contract to the date of return, adding to interest equivalent to 2% per annum for the money to the buyer," the case holding that the judgment below erred by misapprehending the legal principles as to the additional interest rate is null and void on the ground that the circumstance such as the buyer's receipt of part payment loan is not common to all buyers, since the circumstance such as the buyer's receipt of part payment loan is not common to all buyers, such individual and specific circumstance should not be used as a basis for interpreting the standardized contract, and it is difficult for the seller to view that the additional interest rate in the standardized contract clause was made unfairly in accordance with the standardized contract.

[1] Article 9 subparagraph 5 of the Regulation of Standardized Contracts Act, Article 548 (2) of the Civil Code / [2] Article 9 subparagraph 5 of the Regulation of Standardized Contracts Act

Plaintiff

Newan Co., Ltd. (Law Firm Jeong, Attorneys Kim Gyeong-hee et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2013Na35877 decided May 23, 2014

The part of the judgment of the court below against the defendant regarding the determination of additional interest rate of 2% per annum in restitution shall be reversed, and this part of the case shall be remanded to the Suwon District Court Panel Division. The remaining appeals shall be dismissed.

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

1. As to ground of appeal No. 7

A. A standardized contract shall be interpreted fairly and reasonably in light of the purpose and purpose of the standardized contract in question in accordance with the principle of trust and good faith, and it shall be objectively and uniformly interpreted in consideration of the overall interests of average customers on the basis of the possibility of their interests without considering the intended purpose or intent of the parties to the contract. Even after such interpretation, in cases where the meaning of the standardized contract is unclear, such as where the standardized contract clause is objectively and objectively interpreted and its respective interpretation is reasonable, it shall be interpreted favorably to customers (see, e.g., Supreme Court Decisions 2008Da81633, May 28, 2009; 2009Da60305, Dec. 9, 2010).

B. According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning. According to Article 8 (1) 2 and 3 of the contract for sale in this case, the part where the defendant can claim damages for delay at the rate of 15% per annum among the amount paid by the defendant on behalf of the plaintiff shall be limited to 19,090,565 won as loans paid by the defendant up to June 4, 2009, the first day prior to the commencement of occupancy in this case, and since there is no special agreement as to damages for delay as to the portion paid by the defendant on behalf of the plaintiff after the first commencement date of occupancy in this case, it shall be limited to 19,090,565 won per annum under the Civil Act, and therefore, it shall be deemed that there is no evidence that the defendant notified the payment prior to the cancellation of the contract for sale in this case.

Article 8 (1) 2 and 3 of the contract for the sale in lots of this case can be sufficiently interpreted to apply the overdue rate of 15% per annum to the Defendant's interest payment amount incurred by the day immediately before the beginning of the first occupancy. Examining these circumstances in light of the above legal principles, the above determination by the court below is just and acceptable. In so doing, it did not err by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the interpretation of the terms and conditions.

2. As to the grounds of appeal Nos. 1 through 6

A. Relevant legal principles

Article 9 of the Act on the Regulation of Terms and Conditions (hereinafter “Terms and Conditions Regulation Act”) provides that “any of the terms and conditions that provide for the cancellation or termination of a contract that falls under any of the following subparagraphs shall be null and void.” Article 548(2) of the same Act provides that “Any of the terms and conditions that provides for the cancellation or termination of a contract shall unreasonably reduce the business operator’s obligation to restore or compensate for damages due to the cancellation or termination of the contract.” Since Article 548(2) of the Civil Act provides that interest shall be added from the date of receipt of the money to be returned when the contract is terminated, the obligation to return the money already received by the business operator due to the cancellation of the contract shall be presumed to be unfair disadvantageous to the customer and void. However, if the additional interest rate is to be returned in addition to the interest, the interest rate shall not be determined on the basis of the intention and purpose set forth in the relevant terms and conditions, ordinary transaction practices in the relevant business, trade-related laws or business regulations, product and service of the business operator, etc.

B. Regarding ground of appeal No. 6

(1) According to the reasoning of the judgment below, Article 3 of the sales contract of this case (hereinafter "the contract of this case") provides that "where the sales contract of this case is cancelled, the defendant shall refund to the plaintiff the price already paid by the plaintiff plus interest equivalent to 2% per annum from the date the plaintiff received the payment to the date of return (Provided, That in the case of paragraph (1), no interest shall be added to the penalty and other mutual-aid money, and the penalty shall be deducted in sequence from the down payment)." The "other mutual-aid money" here plans the amount of the obligation that the plaintiff shall pay to the defendant pursuant to the contract of this case, such as the payment of the intermediate payment, the payment of the intermediate payment, the interest of the intermediate payment, and the arrears, etc., which are the object of the settlement contract of this case, as a matter of course, and it is merely a separate claim that the defendant has against the plaintiff, and it can be settled through the execution of the right of offsetting, but it constitutes an unfair reduction of the obligation to restore to the original condition of this case.

(2) In relation to this, the defendant asserts that the part concerning "other mutual-aid money" of the provision of this case is not unfair as the content of Article 2 (1) 3 proviso of the apartment complex standard supply contract enacted and announced by the Fair Trade Commission as the standard terms and conditions No. 1001, May 30, 2002. However, the above proviso only seems to have the meaning of informing the purchaser of the disadvantage that the business operator would suffer from the disadvantage that the penalty or principal and interest of the loan would be deducted before the cancellation of the sales contract, and it does not include the meaning of excluding interest on the refund equivalent to the amount. Furthermore, according to the records, it does not seem that the sales contract is used in the way of deducting the "other mutual-aid money" from the principal of the sales price paid by the purchaser.

Examining these circumstances in light of the legal principles as seen earlier, the lower court’s determination that the portion of “other mutual aid money” under the provision of this case is invalid as it unfairly reduces the Defendant’s duty of restoration, which is the business operator, is justifiable. In so doing, it did not err by misapprehending the general principles

C. As to the grounds of appeal Nos. 1 through 5

(1) According to the reasoning of the judgment below, with regard to the portion of this case’s provision stipulating 2% per annum of the interest rate on money to be returned by the defendant at the time of the cancellation of the sales contract in this case(hereinafter “the interest rate added at the time of restoration to original state due to the cancellation of the contract”) as the nature of return of unjust enrichment, the interest accrued before the cancellation of the contract should be the amount corresponding to the profits accrued by the person liable for return of unjust enrichment and the loss incurred by the other party. However, compared to the case where the defendant was assumed that the amount to be returned to the plaintiff was loaned from the financial institution or the plaintiff deposited in the financial institution, the additional interest rate of 2% per annum is considerably lower than the deposit or loan interest rate of the financial institution, the plaintiff’s intermediate payment interest rate of 10% per annum, and the plaintiff’s new interest rate of 20% per annum was determined to be 30% per annum per annum, and the contract was cancelled by the defendant’s amendment to the Commercial Act.

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

① The lower court cited the circumstances based on which the Plaintiff paid interest on intermediate payment, but the circumstances such as whether the buyer received part payments loans or paid interest on loans are not common to all buyers, and thus, such individual and specific circumstances should not be based on the interpretation of the terms and conditions.

② Although the lower court deemed that the annual interest rate of 2% was significantly lower even if compared to the loan or deposit interest rate of a financial institution at the time, even if examining the record, it is difficult to find out sufficient grounds to support such determination, as well as to find out the fact that the standard interest rate or the deposit or loan interest rate of a financial institution has long been significantly high, and in the case of a deposit, the income tax should be deducted in the case of a deposit, and thus, the amount actually received is bound to be lower than the amount calculated by the agreed interest rate, it is difficult to view the foregoing determination as appropriate.

③ Before the standard terms and conditions of the apartment supply contract publicly announced by the Fair Trade Commission are amended on November 8, 2013, the contractor, etc. may autonomously determine interest rates at the time of rescission of the contract. The Defendant prepared the instant sales contract in accordance with the standard terms and conditions.

④ Considering the fact that setting a low interest rate along with a penalty is helpful to prevent the destruction of the sales contract even during the period of the sales contract and to facilitate the smooth implementation of the sales business, there is room to view that there exists a reasonable reason to justify the application of the terms and conditions provisions in the case where the sales contract is cancelled due to a cause attributable to the buyer.

Examining the above circumstances in light of the legal principles as seen earlier, it is difficult to view the interest rate rate portion of the instant provision as a provision that unfairly reduces the Defendant’s duty to restore. Accordingly, the lower court erred by misapprehending the legal principles as to Article 9 subparag. 5 of the Act on the Regulation of Terms and Conditions, as well as the objective and uniform interpretation principles, to determine that the interest rate portion of the instant provision is unfair and invalid.

3. Conclusion

Therefore, the part of the judgment below against the defendant regarding the determination of additional interest rate of 2% per annum in the case of restitution is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)