(영문) 대법원 2017.4.13.선고 2016다274911 판결

1. 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") to be null and void on the ground that the terms and conditions of the contract are unreasonably unfavorable to customers, it is insufficient to say that the terms and conditions of the contract were somewhat unfavorable to customers, and it is not sufficient that the contractor abused the position of the contracting party to the contract to prepare and use the terms and conditions contrary to the principle of good faith against the legitimate interests of the contracting party and reasonable expectations, and thus, it is difficult to find that the terms and conditions of the contract were unreasonably unfavorable to customers, such as the possibility of an increase or decrease of the terms and conditions of the contract in proportion to the terms and conditions of the contract, influence between the parties to the transaction, and the rate of increase or decrease of the size of the terms and conditions of the contract, and thus, it should be determined by the court below to have determined that the terms and conditions of the contract should not be clearly stated.

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 the co-ownership of all sectional owners," and Article 12(1) provides that "each co-owner's share belongs to the ratio of the area of his/her exclusive ownership." Since the common use area of a divided store is usual transaction practice, it would conform to the ratio of the area of his/her exclusive ownership, the increase and decrease of the common use area would be expected to take place in proportion to the increase and decrease of the area for exclusive use if average and reasonable customers are in accord with the ratio of the area for exclusive use. On the contrary, it is extremely exceptional that

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. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following facts.

① On September 2002, the Plaintiff entered into a comprehensive implementation contract for the reconstruction project with the said reconstruction association on the following occasions: (a) the Plaintiff was implementing a new construction project of the commercial building called “G” (hereinafter referred to as the “instant commercial building”) in the F-gu Seoul Central District, Seoul, where the land of the former D market was located; and (b) the Plaintiff entered into a comprehensive implementation contract for the reconstruction project with the said reconstruction association.

On September 28, 2006, the above reconstruction association opened an extraordinary general meeting of members and included 1/2 of the passage area (so-called "sloping area") linked to each store in calculating the sale area, and decided to calculate the remaining common area in proportion to the exclusive use area of the store.

③ On April 23, 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 “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 instant sales contract provides that “If there is an increase or decrease in the area for exclusive use after drawing lots of stores, 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 rent size of the store allocated after drawing lots.”

4. The above determination by the court below is not acceptable for the following reasons.

① According to the Aggregate Buildings Act, a section for common use belongs to the co-ownership of all sectional owners except for a section for partial common use (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)), but such matters may be separately determined by regulations (Article 10(2)). In real transactional relationship, where each co-owner’s share in the section for common use does not accurately proportion to the area of his/her section

(2) In the case of large-scale commercial buildings occupied by a large number of sectioned stores, the value of each individual store may vary substantially on the same floor. Therefore, it cannot be deemed that reflecting the passage area abutting on the relevant store in calculating the common area that serves as the basis for rental deposit goes against the legitimate interests of buyers and reasonable expectations.

③ In the case of the instant shopping mall, 1/2 of the passage area abutting on each sectional store in calculating the sale area shall be included in the official use area of the relevant store, and the remaining public use area shall be calculated in proportion to the exclusive use area of the relevant store is not unilaterally determined for one of the interests of the relevant project operators, etc., as matters determined through an extraordinary general meeting in order for the reconstruction association members, who were in the position to be determined the location of their own store through the future lottery, to eliminate unfair treatment that may arise among them. This is also revealed in light of the above calculation method, not only the increase in the sale price but also the increase in the sale price but also the increase in

④ In light of the language, content, system, etc. of Article 5(1) of the instant sales contract, it is evident that the rental deposit out of the sales price ought to be settled according to the leased area plus the area for exclusive use by its occupant. In addition, the aforementioned contents are general and common in transactions, and thus, the Defendant also knew or could have anticipated such contents.

⑤ Even if the Plaintiff did not explain to the Defendant that the calculation method of the common area as referred to in the above provision, i.e., 1/2 of the passage area abutting on each sectioned store, and that the remaining common area is calculated in proportion to its exclusive use area, it would have been an important concern for the contracting parties to the instant sales contract or the instant sales contract or the instant sales contract, and the Defendant did not raise any objection to the final details of the sales price settlement from the Plaintiff, even though the Defendant was well aware of, or was well aware of, the above contents from the time of the contract, in light of the fact that such circumstances were not affected the conclusion of the contract.

In light of the Supreme Court precedents seen earlier, Article 5(1) of the sales contract of this case cannot be deemed as "a clause that has lost fairness in violation of the principle of trust and good faith" even if interpreted in accordance with its language, and it cannot be deemed that the Plaintiff violated its duty to explain as provided by the former Act at the time of entering into the sales contract of this case.

5. 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. In so doing, 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

6. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and 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.