In a case where Company A, an online lodging reservation service platform service platform operator located in the Netherlands, posted the terms and conditions of “return” or “opportune” among “the type of guest rooms” on the list of guest rooms searched in its platform, and prevents customers from being refunded accommodation fees in advance if they were to be cancelled after promising the guest rooms with the clause on refund rates, the case holding that the Fair Trade Commission’s disposition was unlawful on the ground that the provision on refund rates was a standardized contract clause that imposes unfair excessive damages on customers, but the Fair Trade Commission recommended Party A to revise or delete the relevant provision on the ground that the non-performance of the provision was an unfair excessive compensation obligation on the ground that the non-performance of the provision causes or is highly likely to cause damage to many customers, and the company Gap ordered Party A to revise or delete and prohibit the use of the provision on refund rates on the ground that it is not a business operator under the Act on Regulation of Terms and Conditions in connection with the provision on refund rates.

On the fact that Company A, an online lodging reservation service platform service platform operator located in the Netherlands, posted the terms and conditions of “refluence” or “refluence” among “the type of guest rooms” on the list of guest rooms searched in its platform, thereby preventing customers from being refunded the pre-paid accommodation payment if they cancel after promising the guest rooms under the refund cost clause, the Fair Trade Commission recommended the Company A to modify the relevant provision on the ground that the refund payment clause is a standardized contract clause that imposes unfair excessive damages on customers, but ordered Party A to rectify or delete the refund payment clause on the ground that the failure to implement the correction recommendation would cause or have a significant risk of damage to many customers.

The case holding that Gap company is a contractual terms and conditions under the Act on the Regulation of Terms and Conditions, which are mandatory terms and conditions (hereinafter referred to as the "Terms and Conditions Act"), since Gap company operates a platform with Korean language for domestic customers even if it does not have a place of business in the Republic of Korea, and conducts its business activities through the domestic Internet search portal site advertisement, and its lodging company conducts an act necessary for concluding a contract using Gap company's platform in the Republic of Korea, the platform use contract and lodging contract constitutes "consumer contract" subject to protection under Article 27 of the Private International Law, and the refund price clause unilaterally is made by the other party to the contract when considering the customer's perspective, the contract is unilaterally made by the other party to the contract, the contract's access to the platform and the establishment of a pre-sale clause in a certain form to enter into a contract with the many unspecified customers who choose accommodation goods, and thus the contract is not unlawful, since Gap company's offering of accommodation service with Gap company's content and non-sale terms and conditions for its own accommodation service contract should be one of the parties to the contract.

Article 2 Subparag. 2, Articles 8, 17, 17-2(1) and (2)6 of the Regulation of Standardized Contracts Act, Article 27(1) of the Private International Act

Busan.com (Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Attorney Kim Jong-sik, Counsel for defendant-appellant)

April 1, 2020

1. The Defendant’s corrective order stated in attached Form 1 (attached Form 1) issued to the Plaintiff as the Decision No. 2019-032, Feb. 11, 2019, is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The text shall be as shown in the text.

1. Details of the disposition;

A. The plaintiff's status

The Plaintiff is an online accommodation reservation service platform provider that provides accommodation notice, search, accommodation reservation, settlement services, etc. to customers (hereinafter referred to as “customers”) who intend to use accommodation and accommodation businesses in each world through his/her Internet homepage (website omitted) or mobile display (hereinafter referred to as “tel”). The Plaintiff is an online accommodation reservation service platform provider that has obtained authorization in accordance with the Netherlands’s law and provides them with more than 40 services in several languages.

(b) A clause concerning refund;

The plaintiff puts up a notice on the condition of ‘Refunded price' on the list of guest rooms (hereinafter referred to as ‘returned price clause ‘) in the list of guest rooms searched from one's platform, ‘The conditions ‘The guest Room Type â…………………………………………………………………ââââ…………âââââââââ). If the customer has promised a guest room stating the refunded price clause and then cancelled it, he shall not be refunded any accommodation price

C. The defendant's disposition

1) On November 1, 2017, the Defendant recommended the Plaintiff to revise the relevant provision within 60 days from the date of receiving a recommendation for correction pursuant to Articles 8, 17, and 17-2(1) of the Regulation of Standardized Contracts Act (hereinafter “Terms and Conditions Act”), on the ground that the refund payment clause is a standardized contract clause that imposes an unreasonably excessive liability on the customer for damages.

2) The Plaintiff received a corrective recommendation on November 7, 2017, but continued to use the refund payment provision.

3) Accordingly, the Defendant issued an order to revise or delete the provision on refund price and prohibit the use of the provision on refund price in accordance with Article 17-2(2)6 of the Terms and Conditions (attached Form 1) on the ground that nonperformance of corrective recommendation by Decision No. 2019-032 on February 11, 2019 causes or is highly likely to cause damage to many customers (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 2, 3 and 12, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Failure to meet business requirements

“Business entity” subject to the Regulation of Terms and Conditions Act refers to one of the parties to a contract, and the parties to a lodging contract are lodging enterprises and customers. The Plaintiff is merely a platform business entity and is not a party to a lodging contract. The Plaintiff may not become a party to a lodging contract solely on the ground that the Plaintiff participated in the formation of the terms and conditions or partially engaged in business related to the reservation of accommodation.

The provisions on the refund for repayment constitute the contents of the lodging contract. The issue of the refund for accommodation is the inherent policy of an individual accommodation business entity and the goods that are not refunded for repayment is decided whether or not the accommodation business entity posts. Therefore, the provisions on the refund for repayment for repayment are not the plaintiff's terms and conditions.

2) Failure to meet the requirements of unfairness.

A product subject to refund is sold at a minimum price at a discount of 10 to 20% compared to the usable product. A customer has chosen the conditions of refund instead of enjoying discount benefits under the status of being sufficiently notified of the contents and effects of the refund amount clause, and exceptionally, it is possible to refund in extenuating circumstances. Therefore, a contractual clause that imposes unfair excessive liability on the customer for damages cannot be said to be a clause that imposes unfair excessive liability on the customer. Rather, even though the amount of refund amount clause is low, it contributes to the promotion of the customer’s welfare by allowing the customer who can plan travel in advance to enjoy discount benefits.

B. Facts of recognition

1) Contract relationship between the Plaintiff, accommodation, and customer

A) Lodging registration agreement between the Plaintiff and the lodging enterprise

The Plaintiff enters into a contract for the registration of accommodation facilities using the terms and conditions of registration (A No. 4) with accommodation establishments in the world. According to the terms and conditions of registration, lodging establishments provide information to accommodation establishments, and the customer makes a promise for accommodation through the Plaintiff’s platform, a contract is formed between the accommodation establishments and the customer, and the accommodation establishment is deemed a party to the contract. The Plaintiff merely provides a specific settlement system on behalf of the accommodation establishments and conducts a settlement brokerage, and the Plaintiff is not a guest room (re-seller) seller, but a service fee is collected from the accommodation. The main content of the registration agreement is as stated in attached

B) A platform service contract between the Plaintiff and the customer

According to the terms and conditions of use (No. 5) the Plaintiff entered into a platform use contract with a customer via the platform. 2) Under the terms and conditions of use, the accommodation company maintains all charges/cost/prices, policy and conditions for reservation, and other relevant information provided to the platform, and there are separate restrictions and conditions, such as cancellation or refund price, in the special goods provided by the accommodation company. The customer may use the Plaintiff’s ( platform) service free of charge, and the lodging company pays the fees specified at the time of the reservation for accommodation to the lodging company, and the lodging company pays the Plaintiff the fees if the customer uses the accommodation. The amount paid by the Plaintiff is provided to the lodging company on behalf of the lodging company through the third party’s settlement company, but the Plaintiff did not perform the functions and roles of the final sales officer. The customer’s basic terms and conditions of the lodging company are verified through the relevant accommodation company’s accommodation business, but the Plaintiff’s basic contents of the lodging company’s platform is stated in each accommodation business information page, and the Plaintiff is not entitled to receive any objection or reimbursement from the Plaintiff’s.

In making a promise to accommodation through the Plaintiff’s platform, it is unnecessary for the Plaintiff to become a member of the Committee. The Plaintiff shall provide the customer with the terms and conditions of use at the stage of settling the accommodation cost.

(c) Lodging contracts between accommodation establishments and customers;

Customer and accommodation enterprises enter into accommodation contracts through the Plaintiff’s platform without direct face-to-face. Customer bears the obligation to pay accommodation costs, and accommodation enterprises bears the obligation to provide accommodation services for accommodation period to customers.

(ii) the process of posting accommodation goods;

A) The Plaintiff is operating an X-Manet (Etrap and accommodation product registration system) that can register and correct information, conditions, etc. on accommodation facilities by a lodging entity.

(b) If the accommodation entity consents to the terms and conditions of registration and registers accommodation information, the Plaintiff shall send an e-mail to the accommodation entity on the e-mail on the e-mail of X-mailnet Manager, after reviewing whether all the information has been properly entered.

C) A lodging entity may register and modify the type of guest rooms, dates, brings type, number, guest rooms, additional facilities, policies such as modification and cancellation of reservations (free type, Wi-Fi, late late late) and information, conditions, etc. on accommodation facilities, such as pre-contracted guest rooms and the number of pre-contracted guest rooms, by obtaining user names and passwords available by the Plaintiff from the Plaintiff. To this end, the Plaintiff shall provide for the type of accommodation conditions in the X-Manets and in a variety of options. If the lodging entity starts online sales and sets up online reservations after registering and revising online sales and establishes a pre-contracted as possible, it shall be searched from the Plaintiff’s platform.

D) A lodging company may freely create and manage various cancellation policies, including refund rates, from Xnets. If a lodging company intends to add policies free of charge or partial refund from Xnets, it shall first select whether or not “where a customer is able to cancel a reservation free of charge” and if a free cancellation period exists, a number of options (not later than 18 days on the date of body, 3 days on the body, 5 days, 7 days, 30 days, 42 days, 60 days, and 60 days prior to the physical body) as to “where a customer cancels a reservation of accommodation at any time, he/she will be exempted from penalty” and, if the free cancellation period has elapsed, a number of options are chosen to impose penalty on a customer (not later than 18 days on the body, 30,50,60, 70, 90% on the first day, and 14 days on the day of body, 30 days, 70%, 90% or more on the remaining free cancellation period.”

(iii) customer accommodation reservation process;

A) multiple accommodation facilities are searched when a customer enters a travel site, body cream, and body cream-out date by accessing the Plaintiff’s platform. Among them, if a customer characters a specific accommodation, a variety of accommodation products composed of various items, such as the type of guest room (scale, number, convenience facilities, etc.), the fixed number, charges, selective choice (influences, refund cost, cancellation of free cancellation, prior settlement, whether prior payment is necessary, and whether it is included) may be seen. The products are marked separately depending on the type of guest room, and the minimum level of products are ordinarily exposed to the highest level. Since lodging establishments posted a condition that the price is low instead of the refund is low, it is highly likely that lodging products under a condition that the refund is under the lowest level of products may be exposed to the highestest group of products.

A person shall be appointed.

B) A customer may search accommodation on a portal site, such as Google and NAber. As a result of the search, the minimum products posted by many platform operators, including the Plaintiff, are exposed to the same accommodation facilities. If the customer characters the Plaintiff to a specific platform operator, the customer will move to the Plaintiff’s reservation screen.

(c) If a customer selects a lodging product as desired and makes a reservation, it is possible to choose a type of settlement in advance or by post-payment, and, if it is entered into information on settlement means, it is complete a lodging reservation. A lodging product subject to conditions of refund must be settled in advance.

If the plaintiff's platform makes a prepaid payment, the price paid shall not be paid directly to the accommodation business entity without going through the plaintiff. The plaintiff does not receive any nominal amount, such as the fee from the customer.

D) If the customer completes accommodation reservation by paying the price, he/she can verify the details of the reservation fixed on the Plaintiff’s platform, and may use services, such as output of the reservation certificate and mobile storage, guest room trade, modification or cancellation of the reservation.

4) Contents notified by the customer during the process of promising accommodation in the Plaintiff platform

A) On access to the Plaintiff’s website, the phrase “I will provide 29,100,000 accommodation options, including 6,290,000 accommodation options to exceed the dog, apartment, etc., at the bottom of the first screen, at the location of 227,000,000 local travel places in 227,000.”

B) If a customer enters the stage of entering personal information, such as his/her name and e-mail address, for the reservation of accommodation, the refund-free product is indicated on the left-hand side of the personnel entry column as “if the cancellation fee is imposed,” and the amount is indicated as the same as the amount of accommodation payment. In addition, if the customer brings a marina box on the sign “repaid price” on the side of the word “repaid price” as indicated below in the personnel entry column, it appears that “in the event of refund: cancellation, change, or classic shock, the total amount of the pre-paid amount is claimed.” In addition, at the bottom of the Plaintiff’s homepage, the phrase “after the final stage” at the bottom of the Plaintiff’s website, stating, “the liquor tax is required to confirm the conditions of the pre-contracted.” The pre-contracted poppy poppy will be destroyed if the phrase is clean, and the total amount of the contract is cancelled: the cancellation, change, and the contract claim is reported.”

C) At the stage of inputting information on the means of settlement, such as credit cards, the details of the terms and conditions of use applied between the Plaintiff and the customer are able to read “the completion of the reservation” as follows: (a) the content of the terms and conditions of use applied between the Plaintiff and the customer, if the term “general terms and conditions” is charactered by Maice, at the bottom of the Plaintiff’s website.

A person shall be appointed.

D) When the customer has paid accommodation fees by credit card, etc., the text messages sent to the customer are named as follows:

A person shall be appointed.

E) Upon completion of the reservation, the customer receives the confirmation of the reservation and the guidance e-mail sent by the Plaintiff. The confirmation of the reservation stating the Plaintiff’s name contains the following: (a) the amount settled is paid to the accommodation business entity; (b) the Plaintiff does not claim the fee to the customer; and (c) the accommodation entity may claim the full amount of the fee if it is shocked without the prior cancellation of the reservation.

A person shall be appointed.

(b)

A person shall be appointed.

F) At the bottom of the screen that confirms the reservation, there is a content regarding questions and answers asked and answers to the highest number of customers. In the event that questions relating to “cancellation” are talked, the amount of the cancellation fee is determined by the lodging policy and the fee is settled at the lodging. The main contents are as follows:

Does it be possible to cancel the reservation contained in the text? The cancellation fee shall be designated at the lodging and specified in the policy for cancellation. It may pay additional charges to the lodging room. It may be imposed upon the cancellation of the reservation, but no fee shall be imposed in the case of free cancellation? However, if the free cancellation period expires or the refund is pre-contracted, the cancellation fee may be imposed. The amount of the cancellation fee shall be determined pursuant to the policy of the lodging, and the fee shall be settled at the lodging place. If the ○ refund is a pre-paid, the date of change or cancellation is possible? In general, if the refund is cancelled, the penalty may be imposed. Nevertheless, in the process of managing the reservation, it may be requested to cancel the reservation free of charge to the lodging room, and in this case, it may be cancelled by the date of the settlement of the customer accommodation, but in principle, it may be cancelled by the date of the notification of the advance accommodation.

G) If a customer cancels a reservation, the accommodation fee that was paid in advance shall not be refunded in full or in full in accordance with the terms and conditions of refund for each guest room posted by the Plaintiff on the platform.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 4 through 7, 9, 21 through 24, Eul evidence Nos. 2, 3 and 12 (including paper numbers, hereinafter the same shall apply), the purport of the whole pleadings

C. Relevant statutes

[Attachment 2] The entry is as follows.

D. Determination

1) Whether the Standardized Contract Act applies

A) The terms and conditions of platform use, which are applied between the Plaintiff and the customer, with authorization granted under the Netherlands law, are stipulated as the governing law of the Netherlands. Since lodging contracts made through the Plaintiff’s platform are concluded between the accommodation entities and the customers in the world, the governing law of the contract shall be determined for each of the parties in accordance with the principles of private international law.

B) According to Article 27(1)1 of the Private International Act, when a contract entered into by a consumer for purposes other than occupation or business activity in the country is “if the other party to the contract performs occupation or business activity prior to the conclusion of the contract, such as soliciting the transaction by the advertisement, or the other party to the contract conducts occupation or business activity in an area other than the country prior to the conclusion of the contract, and the consumer commits an act necessary for the conclusion of the contract in the country,” the protection granted to the consumer pursuant to the mandatory provisions of the country where the habitual residence of the consumer is located may not be deprived even if the party selects the applicable law.” Article 27(1)1 of the

C) Therefore, even if the Plaintiff did not have a place of business in Korea, the Plaintiff operated a platform with Korean language for domestic consumers, and conducted business activities through the Internet search portal site advertisement in Korea through the Plaintiff, and the lodging company conducts business activities such as advertising in Korea through the Plaintiff, and the consumers in Korea of the Republic of Korea conducted activities necessary for concluding contracts, such as searching for accommodation products and paying accommodation reservations, using the Plaintiff’s platform, etc. Therefore, the platform use contract and lodging contract constitutes “consumer contract” subject to protection under Article 27 of the Private International Act and is subject to the Act, which is mandatory terms and conditions.

2) Whether a refund clause constitutes a standardized contract

Article 2 Subparag. 1 of the Terms and Conditions Act provides, “The terms and conditions refers to the terms and conditions of a contract prepared in advance by a party to a contract to enter into a contract with several other parties, regardless of its name, form or scope.”

In full view of the facts acknowledged above and the following circumstances admitted by the evidence mentioned above, refund payment clause constitutes a standardized contract under the standardized contract terms and conditions.

A) The customer is only entitled to choose one of the goods that are not returned from the Plaintiff’s platform and there is no possibility of changing the content of the provision regarding the specific contents of the refund price clause included in the contract for the goods that are refunded, that is, the reason for refund price, and the scope of refund price or refund price (the penalty rate) on an equal basis with the other party to the contract. The provision on refund price is unilaterally prepared by the other party to the contract when seen from the customer’s position.

B) The provision on refund payment is posted to enter into a contract with many unspecified customers who choose a specific lodging product by accessing the Plaintiff’s platform.

C) If the customer searches for accommodation conditions on the Plaintiff’s platform, the provision on the refund payment is indicated in the “requirements for accommodation goods” or the “opportune” item, and thus, the provision on the refund payment may be deemed to have been established in advance in a certain form for the conclusion of the contract.

D) Inasmuch as a provision on refund is the content of a contract, it is difficult for a customer to enter into a contract on behalf of accommodation and pay the amount of accommodation, but even if it is revoked, it does not receive a refund due to a refund clause, and the accommodation entity is not obliged to return the amount of accommodation to the customer.

3) Whether the Plaintiff constitutes a business entity with respect to the refund payment clause

A) Requirements for a business operator under the Terms and Conditions Act

Article 2 Subparag. 2 of the Terms and Conditions Act provides that "a business entity means a party to a contract who proposes to include the terms and conditions in the contract to the other party." In order for the Plaintiff to be a business entity, the entity shall be a party to the contract entered into by the customer for accommodation, and the entity shall be a person who proposes to include the terms and conditions in the contract.

Generally, who is a party to a contract constitutes a matter of interpretation of the intent of the party involved in the contract. In the event of a conflict of opinion on the interpretation of a juristic act between the parties, the parties’ interpretation should be reasonably interpreted in accordance with logical and empirical rules by comprehensively examining the contents of the juristic act, the motive and background leading up to such juristic act, the purpose to be achieved by the juristic act, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decisions 2009Da92487, May 13, 2010; 2016Da238212, Jan. 25, 2018).

B) Whether the Plaintiff is a party to the contract

Considering the following circumstances that are acknowledged by comprehensively taking into account the aforementioned facts recognized as well as the evidence stated in the evidence Nos. 7, 16, and 30 and the purport of the entire pleadings, refund payment clause is included in the lodging contract, and the parties to the lodging contract are lodging enterprises and customers, and the Plaintiff does not constitute one party to the lodging contract.

① The Plaintiff entered into a lodging business registration agreement with the accommodation business entity. Accordingly, when the accommodation business entity enters the Plaintiff’s Xnet into the Plaintiff’s accommodation conditions, the Plaintiff posted the accommodation product on its platform. The Plaintiff is entitled to receive fees from the accommodation business entity when the Plaintiff selected the pertinent accommodation product searched by the customer on the Plaintiff’s platform and completed the reservation of accommodation and used the accommodation service.

The plaintiff merely examines whether accommodation information was properly entered in the process of registering accommodation information of accommodation business entities, and thereafter the accommodation business entity freely determines the conditions of accommodation by accessing the plaintiff's Xanet, and then posting the accommodation product on the plaintiff's platform as the accommodation business entity entered into the accommodation business entity. As such, the accommodation conditions, including the refund price provision, shall be determined by the accommodation business entity. The plaintiff as an intermediary, does not substantially change the accommodation conditions in the above review process.

② The Plaintiff entered into a platform use agreement with a customer based on the terms and conditions of use. Accordingly, the customer searchs and selects various accommodation goods free of charge using the Plaintiff’s platform, and then offers accommodation reservation. In this process, the Plaintiff mediates the transaction of accommodation contracts between the customer and the lodging company. The Plaintiff notifies the customer that the terms and conditions of refund at the time of entering personal information into a hotel’s policy at the time of entering information into a settlement means, and knows that the reservation of accommodation was directly entered into with the lodging company at the time of entering information into a settlement means. Furthermore, the Plaintiff presented the terms and conditions of use and presented the terms and conditions of use to the lodging company “the accommodation price that the lodging company presented the accommodation conditions to the lodging company and the customer paid to the lodging company, and it is impossible for the customer to refund with the policies of the lodging company.” The Plaintiff stated that the Plaintiff stated the name of the lodging business in the text of the settlement that the customer sent to the customer, and also the written confirmation that the last fare paid to the customer is an familiar charge.

③ A customer concludes a lodging contract directly with a lodging entity by completing a reservation through the Plaintiff’s platform, and accordingly pays accommodation fees to the lodging entity, and receives accommodation services from the lodging entity. A refund provision is one of the terms of the lodging contract.

④ In full view of the above accommodation registration agreement, platform use agreement, content and purport of the accommodation contract, contents of the accommodation contract, the Plaintiff’s notification to the customer during the pre-contract, the transaction method of accommodation reservation, the conditions of accommodation, the fact that all accommodation business entities provide accommodation services, and the subject to whom the amount of liquidated damages arising from the refund and refund are attributed to accommodation business entities, etc., it is reasonable to deem that both the accommodation business entities and the customer have entered into a lodging contract to recognize the parties to the lodging contract as both the accommodation business entities and the customer, and the parties to the accommodation contract. The Plaintiff is not a party to the accommodation contract, since the Plaintiff did not express the intent to become a party to the accommodation contract in the event that the customer completes the accommodation reservation, the Plaintiff cannot be deemed a joint party to the accommodation contract.

⑤ While the Plaintiff conducts the business of receiving accommodation reservations, sending reservation e-mail confirmation, settlement agency for accommodation payments, acceptance of cancellation of reservations, and sending of e-mail with confirmation of cancellation of reservations, etc. on one’s platform, the above act can only be seen as performing the business of providing convenience to lodging enterprises for fees from lodging enterprises in the course of mediating a lodging contract pursuant to a lodging contract concluded with a lodging enterprise, or a service contract concluded with a customer, and it is difficult to view that the Plaintiff became a co-party to a lodging contract.

In addition, in light of the fact that a customer who has promised to provide accommodation goods at his platform has promoted a minimum dancing policy to refund the difference between the scheduled accommodation goods and the scheduled accommodation goods, but it cannot be deemed that the minimum amount of dancing is necessarily connected with the terms and conditions of refund. According to the terms and conditions of registration, an accommodation business entity provides accommodation at the minimum price in compliance with the minimum dancing policy when posting the accommodation goods on the Plaintiff’s platform, which is deemed as the content of the lodging contract, and if the minimum price is needed, the difference between the minimum price and the price is refunded to the customer, the Plaintiff cannot be deemed as a co-party to the lodging contract.

Meanwhile, while the Plaintiff’s platform deals with and publicize other related goods, such as rental car reservations, and participates in inducing and providing customer benefits, it shall be deemed as the Plaintiff’s business act, which is performed separately from the lodging contract, and the Plaintiff cannot be deemed as a co-party to the resale contract or the lodging contract, as a business proprietor for accommodation goods.

6. The Plaintiff is not a party to a lodging facility registration agreement, platform use agreement, or platform use agreement, and platform use agreement. Therefore, the Plaintiff cannot be deemed a party to a contract in relation to the refund price clause.

7) The concept of a business entity under the Terms and Conditions Act cannot be viewed as different on the ground that it is practically difficult for the Defendant to separately regulate the Plaintiff as a business entity with multiple accommodation businesses domestically and overseas, if the Plaintiff is not deemed a business entity under the Terms and Conditions Act in relation to a lodging contract.

C) Whether the Plaintiff proposed its terms and conditions to the customer

According to the above facts, the accommodation conditions of a lodging contract shall be determined by entering the accommodation business into Xanet. Whether the provision on the refund price shall be included in the accommodation conditions is determined by the accommodation business entity. As such, the provision on the refund price shall not be deemed to be the terms and conditions of the accommodation business entity and the Plaintiff’s terms and conditions of the accommodation business. Inasmuch as the Plaintiff only provides the framework for the lodging business entity to enter the accommodation conditions into the Xanet, and did not determine the accommodation conditions itself, the Plaintiff cannot be deemed to have prepared a provision on the refund price payment for one of the terms and conditions of the accommodation contract. The Plaintiff is allowing a customer to search the accommodation products containing the refund price clause and make a promise for accommodation in his platform, but this is also intended to propose a provision on the refund price payment price determined by the accommodation business entity on behalf of the accommodation business entity in mediating the accommodation contract, the subject of the proposal shall not be deemed to be the Plaintiff.

Therefore, the plaintiff cannot be viewed as a person who proposes to make a refund payment clause to the customer as his own terms and conditions.

4) Determination on the Defendant’s additional assertion of grounds for disposition

In the first written resolution on the disposition of this case, the defendant clearly stated that the plaintiff constitutes a business entity under the Terms and Conditions Act since the plaintiff is "party to a hotel accommodation contract jointly with the accommodation business entity". In the lawsuit of this case, the plaintiff asserted to add the grounds for constituting a business entity under the Terms and Conditions Act as follows, and it is determined within the limit that the grounds for the initial disposition are identical. Thus, this paper examines

A) Whether the Plaintiff is an entrepreneur based on a three-dimensional contract

The defendant asserts that "the plaintiff is a party to three pages contracts, which are closely linked between the plaintiff, accommodation establishments, and customers, and the plaintiff finally determines the terms and conditions of accommodation, present them to the customers, and provide accommodation reservation and settlement services, so the plaintiff constitutes a party to three pages contracts."

However, there is no evidence to prove that the Plaintiff, accommodation entity, and customer entered into a single three-dimensional contract. Rather, as seen earlier, the Plaintiff entered into a three-dimensional contract with the accommodation entity, and the platform use contract with the customer, and the customer entered into a three-dimensional contract with the accommodation entity by completing the promise of accommodation in the Plaintiff’s platform. As such, it cannot be deemed that only three-dimensional contracts were concluded between the Plaintiff, accommodation entity, and customer, and that three-dimensional contracts were concluded. The Defendant’s assertion is without merit.

B) Whether the Plaintiff is a business operator based on the status of mail order broker, etc.

(1) The defendant's assertion

The defendant asserts that the plaintiff is a party to a contract under the Terms and Conditions Act, in light of the responsibility and responsibility of the mail order broker under Articles 20-2(1) and (3) and 20-3 subparag. 1 of the Act on the Consumer Protection in Electronic Commerce, Etc. (hereinafter “Electronic Commerce Act”).

(2) Relevant statutes

[Attachment 2] The entry is as follows.

(3) Whether the Plaintiff is a mail order broker, etc. under the Electronic Commerce Act

According to Article 2 subparagraph 2 of the Electronic Commerce Act, the term "mail order brokerage" means providing information on the sale of goods or services by mail, telecommunications or other means prescribed by Ordinance of the Prime Minister and selling goods or services upon consumer subscription, and according to Article 2 subparagraph 4 of the Electronic Commerce Act and Article 3 of the Enforcement Rule of the same Act, the term "mail order brokerage" means providing information on mail order brokerage between parties to a transaction by allowing the use of a cyber mall (referring to a virtual place of business established to trade goods, etc. by using computers, etc. and information and communications facilities; hereinafter the same shall apply) or by providing an advertisement for a mail order in his/her own name or by carrying out part of a mail order, such as provision of information on mail order, receipt of subscription, etc. by indicating his/her name on the advertising means. According to Article 20 (1) and (2) of the Electronic Commerce Act, the term "mail order brokerage business operator, a mail order broker, and a person conducting mail order brokerage business, a consumer protection guide in the electronic commerce transaction business."

According to the above facts, the plaintiff provided information on accommodation products posted by a lodging company in his/her platform and sold it to the customer. In relation to the customer's accommodation reservation, the plaintiff provided information on the receipt of orders, settlement of payments, etc. for accommodation enterprises in the course of sales, and information on the time limit, method and effect of cancellation of order and cancellation of contract, so the plaintiff is a mail order broker under the Electronic Commerce Act and a mail order distributor who is a mail order distributor.

(4) Details of responsibility under the Electronic Commerce Act

According to Articles 20(1) and 20-2(1) of the Electronic Commerce Act, a mail order broker shall make a prior notification so that he/she is not the party to the mail order so that the consumer may easily understand the fact that he/she is not the party to the mail order, and in cases where the mail order broker fails to make the said notification, he/she shall be jointly and severally liable with the requester of mail order brokerage for the damage to the consumer's property damage caused by intention or negligence of the requester of mail order. According to Article 20-2(3) of the Electronic Commerce Act, the mail order broker, who is the mail order distributor, is not exempt from the liability of the mail order distributor pursuant to Articles 12 (Report, etc. of the mail order distributor), 13 (Supply, etc. of Information on Identity and Terms of Transaction), 14 (Supply, etc. of Goods, etc.), 15 (Supply, etc.), 17 (Cancellation, etc. of Order), and 18 (Cancellation, etc. of Order) of the mail order broker's request.

In addition, according to Article 20-3 subparag. 1, Article 13(2) subparag. 5, and Article 14(1) of the Electronic Commerce Act, a mail order brokerage company that performs the business of receiving orders in the course of a transaction in connection with mail order shall perform on behalf of the mail order distributor, where the mail order distributor fails to perform matters prescribed by Presidential Decree, such as (i) providing information on the cancellation of order, and the time limit, method and effect of cancellation of contract, and (ii) verifying subscription, and (iii) other matters necessary for

When violating this, the defendant may take corrective measures, etc. pursuant to Article 32 of the Electronic Commerce Act.

(5) Whether the Plaintiff constitutes a business operator under the Terms and Conditions Act under the Electronic Commerce Act

Even if the Plaintiff, as a mail order broker under the Electronic Commerce Act and a mail order distributor who is a mail order distributor, may assume the same responsibilities as described in the above sub-paragraph (4), this is merely a joint or several responsibilities of mail order brokers and mail order distributors in order to protect the rights and interests of the consumers of electronic commerce due to the unique nature of mail order order under the Electronic Commerce Act, and do not acquire the status of the requester of mail order brokerage and mail order distributor as a contracting party itself. Even if a lodging company is a mail order broker and mail order distributor, the Plaintiff cannot be deemed to have acquired the status of the contracting party of accommodation business itself

The Terms and Conditions Act requires that the Plaintiff be a party to a contract as a requirement for a business operator. As seen above, it is difficult to deem that the Plaintiff is a party to a lodging contract immediately, and therefore, it does not constitute a business operator with regard to the provisions on refund under the Terms and Conditions Act. The Defendant’s assertion is without merit.

5) Whether the terms and conditions are unfair (additional determination)

The Plaintiff is not a business operator under the Terms and Conditions Act in relation to the refund payment clause, and the Defendant’s disposition of this case is unlawful. For the following reasons, it is difficult to readily conclude that the refund payment clause is unfair by unfairly bearing an excessive liability for damages. In this regard, the Defendant’s disposition of this case is unlawful.

A) Relevant legal principles

(1) Article 6(1) of the Terms and Conditions Act provides that “The terms and conditions which lose fairness by violating the principle of trust and good faith shall be null and void” as a general principle concerning the determination of the unfair terms and conditions. The terms and conditions “the principle of trust and good faith” and “fairness” cited in the above provision are general standards in determining the unfairness of the terms and conditions in accordance with Articles 7 through 14 of the Terms and Conditions Act.

In order to recognize “a standardized contract which has lost fairness in violation of the principle of trust and good faith”, the mere fact that the standardized contract clause is somewhat unfavorable to customers is insufficient. It should be recognized that the standardized contract clause has abused its trading position to make and use a standardized contract clause contrary to the legitimate interests and reasonable expectations of the other party to the contract, thereby impairing the sound trade order. In addition, whether “a standardized contract clause which is unreasonably unfavorable to the customer” is “a standardized contract clause which is unreasonably unfavorable to the customer” should be determined by taking into account all the circumstances, including the content and probability of disadvantages that may arise to the customer, impact on the transaction process between the parties, and the relevant statutory provisions (see Supreme Court Decision 2013Da214864, Jun. 12, 2014).

If the terms and conditions are likely to give disadvantages to customers, while there is a possibility of benefit, the degree of disadvantage and benefit and the probability of the occurrence should also be considered as an element of unfair judgment.

(2) It is reasonable to view that the issue of whether “the burden of damages for delay, etc. unfairly excessive to a customer” under Article 8 of the Terms and Conditions Act can be invoked the criteria for determining whether “the estimated amount of damages for delay, etc. unduly excessive” under Article 398(2) of the Civil Act is “the estimated amount of damages for delay.”

Article 398(2) of the Civil Act provides that “Where the estimated amount of compensation for damages is unreasonably excessive” means cases where the payment of the estimated amount of compensation is deemed to result in the loss of fairness by imposing unfair pressure on the debtor in light of the general social norms, such as the status of the creditor and the debtor, purpose and content of the contract, motive scheduled for the amount of compensation, the ratio of the estimated amount of compensation to the amount of debts, the expected amount of damages, transaction practices and economic conditions (see Supreme Court Decision 2015Da209347, Sept. 13, 2018).

B) Whether it is unfair

In light of the following circumstances, the above facts and the evidence as seen earlier, and the statement as to Gap evidence No. 8, the evidence presented by the defendant alone cannot be readily concluded as an unfair terms and conditions clause that imposes unfair excessive liability on customers for damages, and there is no other evidence to find otherwise. The defendant’s assertion is without merit.

(1) Characteristics of the goods to be refunded

Lodging goods posted on the Plaintiff’s platform are offered at a variety of prices to the customer according to accommodation conditions, such as the location of the hotel, the size of the guest room, the number of ancillary facilities to be used, whether it is available for cooking, the size and form of the room, and whether it is possible to refund. The provision on the refund price combines a condition that the amount of accommodation should be immediately settled in lieu of applying a certain discount rate to the amount of accommodation payment, and that the amount of accommodation payment is not refunded regardless of the remaining period, even if the reservation is revoked. The refund payment is an independent lodging product that is treated separately from the refundable goods and the amount of accommodation payment is less than the refundable goods.

(2) Freedom of customer selection

A customer may make a promise to accommodation in comparison with the price and conditions of a variety of lodging goods at the Plaintiff platform. Whether a refund is made is placed at a conspicuous place as one of the elements determining the price and conditions of the lodging goods. In general, refund can be compared with refundable goods at the same time, and refundable goods are also placed on various conditions other than the goods. Refundable goods are also subject to variety of conditions. Refundable goods are included in the scope of accommodation goods, the customer’s choice of the goods is wide and the customer’s right to choose the refundable goods is offered, and refundable goods are not restricted due to the goods. Inasmuch as the Plaintiff’s platform, other than the Plaintiff’s platform, can freely make a promise to accommodation in comparison with the price and conditions of various lodging goods in various competitive platforms, and it is difficult to view that the Plaintiff or hotel offered refund-free provisions by abusing its transaction status and concluded a promise to refund the goods with the Plaintiff’s platform that it is difficult to view that the Plaintiff’s price and the customer’s price of the goods are substantially increased.

(3) The motive for the choice of the goods to be refunded;

A customer has an option to choose any one of the refundable goods and the refundable goods. A customer who can easily establish a prior plan is highly likely to select and discount refundable goods, and a customer who is unable to easily formulate a prior plan or does not want to be able to assume the risk of liquidated damages is highly likely to choose an irrecoverable goods. The customer has an opportunity to freely choose accommodation goods of a specific condition depending on his/her circumstances.

(4) Comparing the customer's interest and disadvantage due to the refund clause

If the customer cancels the reservation of accommodation, even if he/she was not provided with accommodation services from the accommodation entity, the total amount of the accommodation cost is not refunded as the estimated amount of compensation for damages. As such, the rate of the estimated amount of compensation for damages compared to the accommodation cost exceeds 100%. In this regard, the customer’s disadvantage at the time of cancellation of the reservation of accommodation is deemed to be significant.

However, the price of the goods that are refunded is less than the refundable goods, and the discount rate is less than about 10%, which appears to be an average of about 10% (as a result of the Plaintiff’s analysis, the discount rate was calculated at least 5.5% to a maximum of 17.9%, and average of 12.7%). If the refund is used as it was promised by the customer, the customer may gain profits equivalent to the difference between the refundable goods and the accommodation price of the goods that are refundable (hereinafter “increased amount”). Of the accommodation amount, the discount amount is connected with the amount of the refund amount in return in return, and is distinguishable from the estimate of compensation for damages for breach of a contract in general.

In order to determine whether the liquidated damages amount due to the provisions on the liquidated damages are unfairly excessive, not only the disadvantage itself but also whether the estimated amount of the liquidated damages is unfairly excessive, in comprehensive consideration of the interests of discount associated with the estimated amount of the damages. If the expected interest of the customer is more or more than the expected interest, it is difficult to deem that the clause on the liquidated damages is a provision imposing an unreasonably excessive liability for damages. Even if the expected disadvantage is lower than the expected interest, such circumstance alone does not readily conclude that the clause on the liquidated damages amount is a provision imposing an unreasonably excessive liability for damages. Thus, it can be said that the clause on the liquidated damages amount is a provision on the contractual terms that imposes an unreasonably excessive liability for damages on the customer. It can be said that the extent that the expected disadvantage exceeds the expected interest and that such imbalance is considerably excessive.

Since the goods are able to determine the travel period in advance and there is a high possibility for customers with low possibility of revocation, it seems that the number of customers with the recognition of the provision on refund price, but the cancellation of the accommodation contract is not much more than the number of customers with the discount benefit. On the other hand, the number of customers with the accommodation service receiving the discount benefit is much more than this. On the other hand, if the goods are removed uniformly from the total accommodation product, it would result in the deprivation of the customer’s choice to be easily established and discounted, and the welfare of the customers would be reduced as a whole.

The Defendant’s ground for disposition is that “The provision imposes an excessive liability on the customer because it did not take into account at all the time of cancellation, remaining period from the scheduled date of accommodation, possibility of resale of the cancelled guest room,” and it is difficult to confirm whether the Defendant took full account of the fact that the discounted amount out of the accommodation price is a price associated with the provisions on the refund. As such, in connection with an individual accommodation contract to be incorporated into the provisions on the refund of money, there is no evidence suggesting that the Defendant had undergone the process of examining how the contents of the individual accommodation contract should be excessively excessive influence in the entire contents of the individual accommodation contract, but there is no evidence suggesting that the Defendant had undergone the process of determining the excessive excessive influence of the refund payment provision. The evidence presented by the Defendant, such as the statement of evidence Nos. 33 through 38, etc., by itself, is difficult to readily conclude that the refund payment of money is difficult to ascertain the disadvantage and interest that may arise to the customer due to the goods, the probability of the occurrence of disadvantages and profits, and possibility of the remaining amount of the loss.

(v)the relief of force majeure;

According to the terms and conditions of registration, in the event of force majeure cases, accommodation establishments are prohibited from claiming accommodation charges to customers, and the Plaintiff also prevents them from receiving any fees from the accommodation establishments, so there are certain protective devices so that they do not bear excessive damages to customers.

(6) Partial customer damage issues

The Plaintiff notified the customer that the total amount of accommodation charges would be the estimated amount of damages when cancelling a contract four times at the stage of making a promise for the goods in exchange for the refund, thereby preventing the customer from choosing the goods in exchange for the goods in exchange for the future. In the case of the customer who promised the goods in exchange for the refund through a careful review of the provision on the refund, but whose travel plan was cancelled due to personal reasons later, it can be deemed that the customer selected the goods in exchange for the goods at the time of cancellation, even though he could have selected the goods in exchange for the goods in exchange for the goods in exchange for the goods in return for the refund, there is a question that the obligation to compensate for damages was unreasonably excessive because the disadvantage in return for the profit was realized. Nevertheless, in the case of the customer who asserts that the refund was cancelled without careful review and due care, it can be expected to resolve by an unfair legal act in accordance with Article 104 of the Civil Act in a specific case.

(7) Loss of accommodation business due to cancellation of accommodation contract

A lodging company has a cost structure with a high fixed costs and low additional costs required for the increase of accommodation customers, and the utility becomes worse if the guest room is not used on the relevant day.In order to increase the rate of use of guest rooms in a stable manner with the reservation of the product.

Where the reservation is cancelled at the time it is possible to resell the accommodation product and the resale is actually made, there may be no particular damage except the cost incurred in resale transaction between the accommodation company and the Plaintiff. However, if the reservation is cancelled at the time it is impossible to resell the accommodation product, or the resale is not possible even before it is cancelled, the accommodation company cannot receive the accommodation cost from the customer.

The Defendant did not present objective and reasonable data as to which degree of damages the lodging company suffered. The Defendant merely stated in the instant disposition that “If there remains a considerable period until the scheduled date of accommodation, the customer would have a high possibility of resale of the relevant guest room even if the intended date of accommodation remains,” and there is no evidence to prove that the Plaintiff confirmed the specific resale rate. From the preparatory document dated February 21, 2020, the Plaintiff stated that the resale rate of the goods not refunded in Korea in February 2019 is 0.068%, and the remaining period until the scheduled date of accommodation is extremely low. Accordingly, the lodging company appears to have suffered considerable damages to the accommodation price due to the difficulty in resale at the time of cancelling the customer’s promise of accommodation, and even at the time of resale, the possibility of sale at discount, efforts for resale, etc., and the loss or cost may arise.

(8) Other circumstances

The Plaintiff is an entrepreneur of the global lodging reservation service platform and is subject to the Korean Terms and Conditions Act only in relation to the relationship with the customers of Korea. When the Defendant’s corrective order is maintained, the customers of other countries may be unable to use accommodation goods offered at a low price under the condition of refund. This may result in the reduction of the customer’s welfare by infringing upon the customer’s choice who wants to make a low-price reservation even for accommodation goods.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment 2] Relevant Statutes: omitted

[Attachment 3] Omitted

Judge Lee Chang-type (Presiding Judge)

(1) Accommodation reservation is a contract under which the accommodation is to be used during a specific period in the future. On the completion of accommodation reservation, a customer may use accommodation facilities without exercising a separate right to full-time reservation. As such, the substance is a “ Lodging contract”; hereinafter in this context, the term “ Lodging reservation” and “ Lodging contract” are combined.

2) The terms and conditions of use stipulate the travel enterprise as the concept of the travel enterprise to be included in the establishment of the guidance, so the travel enterprise can be understood as a lodging enterprise in this case where accommodation is at issue. The travel referred to in the terms and conditions of use is expressed as accommodation and the travel enterprise is limited to accommodation.

3) The Plaintiff’s platform provides guidance that “A customer shall be deemed to have consented to the general terms and conditions (the terms and conditions of use by completing the reservation)” at the time of inputting the means of settlement, and does not allow the customer to character the terms and conditions of use so that the customer can confirm the contents of the terms and conditions of use, and does not have to have any compulsory character. Although the contents of the terms and conditions of use are somewhat and directly difficult to accept as a translation of a foreign language, it is difficult to confirm the terms and conditions of use from the customer’s standpoint and understand the meaning of the terms and conditions of use as the main text. However, it is deemed necessary for the Plaintiff to take measures to enhance the customer’s confirmation and understanding of the terms and conditions of use.

4) As of February 21, 2020, the Plaintiff made a promise for accommodation with approximately 9.3% of the total accommodation arrangement arranged by the Plaintiff as of February 21, 2020, as of 2019, under which 9.3% of the total accommodation reservation arranged by the Plaintiff, and 96.84% of the total accommodation reservation under which refund is to be made within 120 days from the scheduled date of accommodation, and approximately 3.16% of the total accommodation reservation is to be made within 120 days from the scheduled date of accommodation. According to this, the Plaintiff appears to have freely selected the commodities subject to refund in consideration of its schedule under most remaining days from the scheduled date of accommodation.

5) It does not reflect the discount rate of all lodging goods traded in the Plaintiff’s platform, which is analyzed by extracting some of the lodging goods traded by the Plaintiff on his platform.

(6) The Plaintiff, from the preparatory document dated February 21, 2020 and March 27, 2020 to the preparatory document dated March 27, 2020, 14.6% of the cancelled rate, and the remaining 86.4% of the total 86.6% of the total 14.6% of the total 14.6% of the total 14.6% of the total 14.6% of the total 14.8% of the total 14.6% of the total 14.6% of the total 14.