[1] Requirements for establishing liability for damages caused by deception and the principle of disadvantage of the author in interpreting the terms and conditions

[2] The case holding that in a case where Company A and Company B paid Company B’s corporate purchase loan to Company B and Company B directly pay the purchase price of goods and services purchased by Company A to Company B and Company A concluded an enterprise purchase loan agreement with Company B after a certain period of time to repay the loan to Company A, and the e-commerce site usage agreement operated by the e-commerce site operated by the Korea Electronic Information and Communication Industry Promotion Association provided that the “payment for a transaction without presenting the details of goods and services paid or traded only without actual transaction of goods and services,” but Company C and Company applied for Company B’s corporate purchase loan to Company B for the payment of the purchase price, but the e-commerce contract prepared in the course of application for the loan was written differently from the actual transaction of goods and services, in light of the fact that Company C did not prepare and receive any real transaction, it is difficult to deem that Company C had an intent to obtain corporate purchase loan by deceiving Company C and others, or that Company C received the loan by the above means.

[1] Articles 110 and 750 of the Civil Act, Article 5 of the Regulation of Standardized Contracts Act / [2] Articles 110 and 750 of the Civil Act, Article 5 of the Regulation of Standardized Contracts Act

[1] Supreme Court Decision 2004Da62641 Decided April 12, 2007, Supreme Court Decision 2009Da60305 Decided December 9, 2010 (Gong2011Sang, 100)

(Law Firm Woo, Attorneys Park Young-young, Counsel for the defendant-appellant)

Dongba Co., Ltd. and one other (Law Firm Losch Rexroth, Attorneys Ku-jin et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2017Na38265 Decided April 11, 2018

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

The grounds of appeal are examined.

1. In order to establish liability for damages caused by deception, one of the parties to the transaction shall be liable for a legal act which would have caused intentional deception, which would have not been caused by such deception (see, e.g., Supreme Court Decision 2004Da62641, Apr. 12, 2007). The interpretation of the terms and conditions shall be fairly and reasonably interpreted in light of the purpose and purpose of the terms and conditions in accordance with the principle of trust and good faith, but shall be objectively and uniformly interpreted on the basis of average customer’s understandability without considering the intended purpose and intent of each party to the contract. Even after such interpretation, in cases where the terms and conditions are objectively and objectively interpreted and their respective interpretations are unreasonable, and where the meaning of the terms and conditions is not clear, it shall be interpreted in favor of customers (see, e.g., Supreme Court Decision 2009Da60305, Dec. 9, 2010).

2. A. The lower court determined that Defendant 2’s receipt of KRW 177,00,000 from the Industrial Bank of Korea of KRW 177,00,00 from the Industrial Bank of Korea constitutes an unfair transaction under Article 29(5)3 or 4 of the Terms and Conditions of this case, as well as a fraudulent transaction under Article 29(5)3 or 4 of the Industrial Bank of Korea by deceiving the Bank of Korea.

B. However, the above determination by the court below is difficult to accept in the following respect.

1) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) On Nov. 21, 2008, the Plaintiff entered into a credit guarantee agreement with a locker oil and issued a guarantee certificate until November 19, 2010. The guarantee certificate contains a statement stating that the Plaintiff is responsible for the guarantee only when a transaction takes place through the Korea Association for Information and Communications Technology Industry.

B) As a security issued by the Plaintiff, a company purchase loan contract was concluded between the Bank and the Bank. The content of the contract was that the Bank would pay directly the purchase price of goods and services purchased from a sales enterprise, and that the Party would repay the loan to the Bank after a certain period of time.

C) Around June 7, 2010, the Defendant Company supplied Titr 50,000 Titrts to Titr milk, and on the same day, issued a tax invoice with the aggregate amount of KRW 177,922,976 to Titr milk.

D) Sables and Defendant Company agreed to the terms and conditions of this case upon joining the electronic commerce website operated by the Korea Electronic Information and Communication Industry Promotion Association as a member. According to the terms and conditions of this case, in cases where the payment of funds is made only without actual transaction of goods and services in violation of Article 29(5)3 of the terms and conditions, or the payment is made for transactions that are not made without actual transaction of goods and services in violation of Article 29(5)3 of the terms and conditions of this case (hereinafter “markets”).

E) In order to pay the Defendant Company’s price for Twitts, Pream applied for a company-purchase loan to the Industrial Bank of Korea. The electronic commerce contract prepared during that process contains a transaction of goods equivalent to KRW 17,00,000 on July 8, 2010 and issued a tax invoice equivalent to that on the same day. On July 9, 2010, the electronic commerce contract contains a transaction of goods equivalent to KRW 60,000,000 on the same day, and the tax invoice equivalent to that on the same day is issued. The electronic commerce contract includes item as “ Twitts,” and the “standard” and “unit” describe “50,000” equivalent to the quantity.

F) The Defendant Company requested the Industrial Bank of Korea to collect sales proceeds on its basis. The Industrial Bank of Korea paid the Defendant Company KRW 177,000,000 with the corporate purchase loan, however, the Bank did not repay the loan, and the Plaintiff subrogated the Industrial Bank of Korea to KRW 150,450,000 out of the loan.

G) At the time of receiving a loan from the Industrial Bank of Korea for corporate purchase funds, Article 6(3) of the Bank of Korea Regulations on Handling Fund Loans for Corporate Purchase Fund (hereinafter “Regulations”) stipulating the Bank of Korea’s matters necessary for handling corporate purchase funds by the Bank of Korea at the time of receiving the loan from the Industrial Bank of Korea was that “the request for collection of sales funds must be the one requested or transmitted by the seller within 30 days from the date of issuance of the tax invoice, etc.” in the case of a loan for corporate purchase funds by electronic means between companies.

2) Examining the background leading up to the loan, the contents of the terms and conditions of the instant agreement and the transaction rules, and the following circumstances in light of the legal principles as seen earlier, it is difficult to view that the Defendant Company’s act of deceiving the Industrial Bank of Korea to acquire a corporate purchase fund loan or to receive a loan by the said means constitutes an unfair transaction under Article 29(5)3 or 4 of the instant terms and conditions.

A) Around June 7, 2010, the Defendant Company did not take an electronic commerce contract form and take a loan even if there was no real transaction, even though it actually supplied Titr's 50,000 Titr's loan to Titr's 50,000, the guarantee period of the Defendant Company, and there was no real transaction.

B) It is difficult to view that the settlement was made without presenting the details of the goods to be traded, as the electronic commerce contract drawn up between the Defendant and the B/L between the Defendant Company, stating the items and quantities of the goods subject to the transaction.

C) Article 6(3) of the Handling Rule provides that “A request for collection of sales proceeds shall be made within 30 days from the date of issuance of the tax invoice, etc. by the seller, and shall be made for collection or transmission by the seller.” However, the time when the Defendant Company requested the collection of sales proceeds is more than that set forth in the Handling Rule.

C. Nevertheless, the lower court determined that the Defendant Company’s receipt of a corporate purchase fund loan from the Industrial Bank of Korea constitutes an unfair transaction as stipulated in Article 29(5)3 and 4 of the Terms and Conditions of this case, and that it acquired a corporate purchase fund loan by deceiving the Industrial Bank of Korea. In so doing, the lower court erred by misapprehending the legal doctrine on tort caused by deception and interpretation of terms and conditions, etc., and thereby adversely affected the conclusion of the judgment

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)