In a case where Party A entered into a contract with Party B, an emigration broker, and Party B, “A may change any matter and speed change in accordance with the changes in the U.S. Civil Code without prior notification, and Party B, as to this change, shall be exempt from refund regardless of the provisions on civil criminal liability and refund of fees,” and the contract clause stating that “B, after the conclusion of the contract, becomes unable to issue a visa due to reasons attributable to Party B, the Company B shall refund the visa to Party B, excluding 10% out of the overseas fees,” and the Embassy paid Party B fees for the speed of domestic and foreign service; and the U.S. Embassy continued to review the issuance of visa; and the U.S. Embassy continued to review the issuance of visa; and there was a declaration of intention to cancel the contract with Party B for reasons of change in circumstances; and thus, Company A may cancel the contract with Party B, which was paid by both parties pursuant to Article 68(3)6(6) of the Civil Code, on the ground that there was considerable change in circumstances in circumstances that both parties could not have anticipated.

When Gap entered into a contract with Eul corporation that is an emigration broker, Eul corporation and U.S. S. S. S. S. S. S. S. S. S. employment emigration, "any matter required in accordance with the changes in the U.S. Civil Code may be changed without prior notification, and the Eul company shall be exempted from refund regardless of the provisions on civil criminal liability and refund of fees," and the contract clause stating that "in case where the issuance of employment visa is impossible due to reasons attributable to Eul after the conclusion of the contract, the Eul company shall be refunded to Eul, excluding 10% out of the overseas fees," the Eul company shall pay the fees for domestic and foreign speeding the Eul company. The U.S. Embassy strictly examined the issuance of visa and continued its examination without the issuance or rejection of the visa, and it is a case where Eul requested for the return of the fees to Eul company, along with its declaration of intention to cancel the contract and its refund for reasons of change in circumstances.

The case holding that since the above provision is null and void pursuant to Articles 6 (2) and 9 of the Regulation of Standardized Contracts Act, the scope of restitution cannot be determined pursuant to the above provision, and since the refund of fees following the above contract cannot be applied mutatis mutandis or analogically applied because it is difficult to see that the above provision is identical or similar to the case where there is a final non-issuance refusal of the above contract due to the reasons attributable to Eul, and thus, there is a significant change in circumstances that both parties could not have predicted due to reasons not attributable to Eul and Eul company's liability, Gap may rescind the above contract as an exception to the principle of contract observance, and the above provision imposes only risk burden upon Eul company Gap by completely exempting from the duty to restore the duty to restore the U.S. Civil Code, which is not premised on both parties' fault, the above contract is a delegation contract that mainly provides Eul company with services directly related to the issuance of non-permanent employment visa, and thus Eul company should return the balance of expenses and remuneration paid to Gap out of the contract paid to Gap pursuant to Article 686 (3) of the Civil Code.

Articles 2, 105, 543, 680, 686(3), and 688 of the Civil Act; Articles 6(2) and 9 of the Regulation of Standardized Contracts Act

[Judgment of the court below]

Bochii Corporation (Attorneys Park Young-chul et al., Counsel for the defendant-appellant)

November 4, 2020

1. The defendant shall pay to the plaintiff 21,88,00 won with 6% interest per annum from April 17, 2020 to December 23, 2020, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 35,513,280 won with 6% interest per annum from the next day of the service of a copy of the complaint of this case until the day of this decision and 12% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. On February 27, 2016, the Plaintiff entered into a contract with the Defendant, an emigration broker, and the U.S. non-career craftsmen employment contract (hereinafter “instant contract”).

Article 1 (Purpose of Contract) of the List contained in the main text and the Plaintiff enter into this Agreement with a view to successful acquisition of the Plaintiff’s employment. Article 2 (Defendant’s Business) 1-1 of the Republic of Korea, 2-1 of the supply of information, and 2-2 of the application for employment permit and approval for the transfer of the United States employment, 2-3 of the 2-2 of the 3-6-2 of the 2-6-2 of the 3-6-2 of the 3-6-2-6-2 of the 3-6-2-6-2 of the 3-6-2-6-2 of the 3-2-6-2-6-2 of the 4-6-2-6-2-6-2 of the 3-6-2-6-2-3-2 of the 4-6-2-2-2-3-2-2 of the 4-3-2-2-2-2-2-2-2-2-2-3 of the 9-2-3-2-2-3-2-2-3-

B. The U.S. employment immigration procedures are classified into: ① labor permit phase in the U.S. Ministry of Labor ? ② Immigration permit phase in the U.S. Epics ? ③ Immigration permit phase in the U.S. Epics ? ③ Immigration license phase in the U.S. Embassy’s Epics ? However, the U.S. Embassy started to conduct a review process more strictly than before the filing of the AP decision with respect to the applicants who had been employed in the U.S. Embassy from March 4, 2016 to Oct. 16, 2016 (the process of further review of the applications filed by a consul prior to the applicant’s decision on the qualifications for non-resident issuance). From September 2016, 2016, the AP decision (TRRs in the process of re-examination, and consulars in the process of review to issue the visa, such as the issuance of the visa from Oct. 16, 2017.

C. The Plaintiff paid 90,000 U.S. dollars 8,000 as domestic commission on the date of entering into the instant contract, and paid 32,000 U.S. dollars in total, around March 2016, around July 2016, around 8,000 U.S. dollars, around September 2016, and around January 2017.

D. On April 16, 2020, a duplicate of the complaint of this case containing an expression of intent to cancel the contract of this case on the ground of change of the Plaintiff’s change of circumstances was served on the Defendant.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 3, purport of whole pleadings

2. Determination

A. Determination as to the cancellation of the instant contract

1) Relevant legal principles

A contract may be rescinded or terminated on grounds of change of circumstances, as an exception to the principle of contract observance, in a case where the circumstances underlying the formation of the contract significantly changed, the parties could not have foreseen at the time of the formation of the contract, and thereby, the maintenance of the contract as it is, would cause a serious imbalance to the interests of the parties or could not achieve the purpose of the contract. Here, the circumstances referred to in this context refer to the objective circumstances underlying the formation of the contract to the parties (see Supreme Court Decision 2016Da249557, Jun. 8, 2017, etc.

2) Determination

A) The following facts or circumstances can be ratified by comprehensively taking account of the evidence mentioned above, Gap evidence set forth in 8 to 10, Eul evidence set forth in 4 to 38 (including additional numbers).

• The Plaintiff’s procedure for issuance of visa based on the application of non-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-employed-at-law (hereinafter “Non-employed-employed-employed-employed-employed-employed-at-law-at-law-at-law-law-at-law-law

• The U.S. Embassy started to make a PP decision and TPP decision from March 4, 2016 to the applicants for the applicants for the applicants for the applicants for the non-careers employed in the U.S. government from March 4, 2016 appears to have gone through a strict review procedure or to limit the issuance of the visa itself, which is not scheduled by the parties at the time of entering into the instant contract.

• Although there are cases where the Defendant entered into a immigration mediation contract with the Defendant and received the TPP decision among the customers who had been employed by the U.S. non-employed workers, this case seems to be only a part of this case. The Plaintiff’s visa issuance procedure is no more than 3 years since the TPP decision, and the U.S. Embassy is hard to find out the reasons why the U.S. Embassy had followed strict procedures for the issuance of non-employed workers, and the specific reasons why the procedures for the issuance of non-employed workers were interrupted at any time, and it is difficult for both the Plaintiff and the Defendant to predict at any time and time.

• The instant contract was concluded for the purpose of the Plaintiff’s living in the U.S. with respect to skilled craftsmen’s employment. As such, all of the Plaintiff’s basis of living changed to the Plaintiff’s living, and as long as the Plaintiff is in a state of examination upon request for the issuance of the said visa, various parts of life, such as choice of residence and occupation, in the Republic of Korea, should be placed in unstable state.

B) In light of the above circumstances, it is reasonable to view that the instant contract was based on the Plaintiff’s visa, and there was a remarkable change in circumstances that both the Plaintiff and the Defendant could not have predicted due to reasons not attributable to the Defendant. In such a situation, maintaining the validity of the instant contract is considerably contrary to the good faith principle, and therefore, it is reasonable to deem that the Plaintiff may rescind the instant contract on the grounds of change in circumstances as an exception to

C) Therefore, the instant contract was lawfully rescinded, upon delivery to the Defendant on April 16, 2020 of a copy of the Plaintiff’s complaint containing an expression of intent to rescind the contract on the grounds of such change in circumstances.

B. Scope of refund of fees

1) The parties' assertion

The plaintiff asserts that Article 6 (2) of each contract of this case concerning a case where it is impossible to issue a visa for employment due to a cause attributable to the defendant, which applies mutatis mutandis Article 6 (2) to 90% of the foreign fee (=$32,000 of the total foreign fee x 0.9) should be refunded.

In regard to this, the defendant does not have a final rejection disposition after the TPP decision, but can not apply Article 6 (2) to a case where a final rejection disposition is made due to a cause attributable to the defendant, and the case where Article 9 (5) of the contract of this case applies, and the above provision provides that the defendant is exempted from the obligation to refund overseas fees, so that the plaintiff does not have any obligation to refund the fees paid by the plaintiff.

2) First, we examine whether the Defendant cannot be deemed to have no obligation to refund fees pursuant to Article 9(5) of the instant contract.

A) The Plaintiff asserts that Article 9(5) of the instant contract constitutes a standardized contract under the Act on the Regulation of Terms and Conditions (hereinafter “Terms and Conditions Regulation Act”), and thus, is null and void because it constitutes a clause that unfairly unfavorable to customers or causes business operators to bear.

B) Article 6(2) of the Act on the Regulation of Terms and Conditions provides that a clause unfavorable to a customer is presumed to be unfair and unfair, and is null and void, and Article 9 provides that a clause that unreasonably reduces the obligation of an enterpriser to restore to the original state or to compensate for damages due to the cancellation or termination of a contract shall be null and void.

The instant contract is concluded for the purpose of the Plaintiff’s final purpose of the Plaintiff’s selection of the goods to be issued as non- skilled craftsmen employed by the Defendant’s pre-determined employment. In the event a cause attributable to the Plaintiff or the Defendant is attributable to either the Plaintiff or the Defendant, the person liable for the refund of the commission is stipulated. However, Article 9(5) of the instant contract provides that the Defendant shall be fully exempted from the duty of restitution in accordance with the changes in the U.S. Civil Act, which is not premised on both causes attributable to the Plaintiff or the Defendant. Accordingly, it is reasonable to deem the said provision as null and void as prescribed by the Terms and Conditions Regulation Act.

Article 15(7) of the above standardized terms and conditions provides that "if the speed of acquisition is delayed or impossible due to changes in the situation outside the business entity's control, such as changes in the immigration order of immigration countries and the speed of business affairs of relevant administrative agencies, the business entity shall not be held liable for damages as provided for in Article 13(1)." However, it is difficult to view the above standardized terms and conditions as a matter of duty to restore the business entity's liability for damages in the event the contract is cancelled. Thus, it is difficult to deny the unfairness of Article 9(5) of the above standardized terms and conditions merely because the above standardized terms and conditions are included in the standardized terms and conditions.

C) Therefore, since Article 9(5) of the instant contract is null and void, the scope of restitution cannot be determined pursuant to the said provision.

3) Next, we examine whether Article 6(2) of the instant contract can be applied or applied mutatis mutandis with respect to the instant case.

“Application mutatis mutandis refers to the same application of the same provision without repeating the same content when the same content as the one already provided is to be re-established at a different place. In addition, in cases where there is no provision applicable to a certain matter, where there is a common point or similar point, and where it is deemed that analogical application is justifiable in light of the structure, intent and purpose of the provision, etc. (see Supreme Court Decision 2019Da226135, Apr. 29, 2020).

The contract of this case is governed by Article 6(2) with respect to the refund of fees in cases where there is a cause attributable to the plaintiff side and where there is a cause attributable to the defendant side. The person who caused the cause is fully or most responsible for the payment of fees. In this case, the plaintiff's application for non-party issuance is unforeseeable because the plaintiff's application for non-party issuance was omitted due to a strict examination procedure which had not been done by the U.S. Embassy, and the U.S. Embassy cannot clearly understand the cause beyond the above procedure. The contract of this case is cancelled on the ground that it is substantially difficult to achieve the purpose of the contract of this case without a cause attributable to both the plaintiff and the defendant, and it is considerably unreasonable to force the plaintiff to continue to bear such conditions. The case seems to have been that the defendant promised to refund or executed refund in cases where the non-party was not issued without a customer's cause prior to this case, but it seems that the defendant's previous decision could not be concluded differently from the defendant's previous decision to issue the contract of this case without any specific reason.

Considering the above circumstances, the refund of fees following the cancellation of the instant contract cannot be deemed to be related to the same content as the refund of fees in cases where there is a final non-party rejection disposition, employer's bankruptcy, withdrawal of employment, etc. due to the Defendant's fault. Therefore, it is inappropriate to apply Article 6 (2) mutatis mutandis.

In addition, in light of the structure of the instant contract and the contents of each provision on the refund of fees, etc. as seen earlier, it is difficult to deem that the case where the Plaintiff was unable to be issued a visa due to the reasons attributable to the Defendant and the instant case and the Defendant’s fault, it is difficult to accept the Plaintiff’s assertion that Article 6(2) should be applied mutatis mutandis.

[Plaintiff-Appellant] Supreme Court Decision 2019Da299256 Decided April 9, 2020, which is required by the Plaintiff, provides for a refund of 90% of the service fees in accordance with the contract at the time of the fact-finding of the lower court’s fact-finding. It is somewhat different from the contract of this case and its contents, which expressly provide for the refund of the service fees “where a labor permit was refused due to a cause not attributable to the Plaintiff” or “where a cause attributable to the Defendant”. The Plaintiff asserted that there was a case where the Defendant promised or actually returned 90% of the service fees abroad to some customers, but it is not appropriate to be invoked as it is for the instant case. Moreover, in the case of Supreme Court Decision 2018Da208406 Decided November 9, 2018, which is required by the Plaintiff, the Defendant’s obligation to refund the service fees pursuant to the above Article 6(1) of the Criminal Procedure Act.

4) The main contents of the instant contract are to provide services that the Defendant directly performs for the issuance of non-person with non-person with non-person with non-person with non-person with non-professional employment (such as contact with the employer of the United States, obtaining employment commitments, preparing an application for non-person with respect to non-person with non-person with non-person with non-person with labor, submitting related documents, etc.). Thus, it is reasonable to view the nature of the contract as a delegation contract (the Plaintiff is deemed a contract that is premised on the completion of the work called non-person issuance). However, even if the Defendant performed certain affairs for non-person issuance, the procedure for the Plaintiff, such as non-person interview, etc., to be conducted directly by the Defendant, and it is difficult to regard the nature of the contract as a contract as a contract for non-person

Article 686(3) of the Civil Act provides, “If a mandate terminates due to any cause not attributable to the mandatary in the course of performing the entrusted affairs, the mandatary may claim remuneration in proportion to the affairs already managed by the mandatary.” Thus, if the mandate agreement is rescinded due to any cause not attributable to the mandatary, the mandator shall be entitled to receive a refund of the remaining amount after deducting reasonable remuneration and reasonable expenses for handling affairs, etc. in consideration of the overall circumstances, such as the degree of the affairs performed by the mandatary, degree of difficulty, degree of effort, and the interests of both parties to the affairs handled by him/her until the termination of the mandate. In such cases, it is reasonable to deem that the mandator may obtain a refund of the remaining amount after deducting reasonable remuneration and reasonable expenses for handling affairs, etc. In such cases, the degree of the affairs handled and the expenses incurred in handling the affairs, etc., bear the burden of proof by the person who asserts

According to the statements in Eul evidence Nos. 39 through 46, the defendant may be found to have remitted USD 21,000 equivalent to 65% of the foreign fees under the contract of this case to Korea S&S for four times from March 4, 2016 to May 23, 2017. However, in determining the amount that the plaintiff can be refunded from the defendant, the following circumstances need to be considered in addition to the above defendant's spending facts.

A) The Defendant found an employer in the U.S. so that the Plaintiff may file an application for a visa with respect to skilled craftsmen, and submitted an application necessary for employment permit, immigration permit, etc. to the Plaintiff, and perform all necessary handling affairs for the speed of issuance of visa. A significant portion of the affairs that the Defendant should handle for the instant contract is already underway.

B) However, the above transfer cost paid by the Defendant is due to the Defendant’s performance of its obligations under the terms and conditions of the contract entered into with Korea SPS, and there was no data to verify which amount was paid by the Defendant for certain business operations. In the case of issuance of the TPP decision, there is also a case where the issuance of the TPP decision is approved, but it is difficult to conclude that the decision to approve the Plaintiff was made at the present time, and that the continued maintenance of the status and status in accordance with the existing procedures for issuance of non-partys is a full benefit to the Plaintiff. Unless the issuance of non-partys is approved, the purpose that the Plaintiff was achieved through the instant contract shall be deemed not to have been achieved, and there is no clear evidence to deem otherwise that the interest of the Plaintiff

C) In light of the content and purpose of the instant contract, the amount of fees, etc., it should be deemed that the instant foreign fee has the same nature as consideration for the Defendant’s performance of duties, as well as for the specific outcome of the Defendant’s performance of duties.

D) Since a series of events related to the TPP decision, companies involved in immigration agency have prepared a special agreement to refund 70% of the fees abroad (Evidence A No. 8).

In light of all these circumstances, 40% of the overseas fees that the Defendant received from the Plaintiff can be recognized as considerable expenses and remuneration paid by the Defendant for the performance of the instant contract. Therefore, it is reasonable to deem that the Plaintiff can be refunded USD 19,200, which is 60% of the overseas fees paid to the Defendant.

5) Meanwhile, in cases where a creditor claims foreign currency claims, which are monetary claims designated in a foreign currency, into Korean currency by exercising the right to substitute payment, the court orders the debtor to perform the foreign currency claims, when it orders the debtor to do so (see Supreme Court Decision 2015Da55397, Jun. 23, 2016). The exchange rate of the U.S. currency as of November 4, 2020, which is the date of closing the argument in the instant case, is 1,140 won per USD 1,88,000, which is significant in this court. Thus, the fee to be paid by the defendant to the plaintiff is 21,88,000 (US$19,200 x1,140 won).

C. Sub-committee

Therefore, as the Plaintiff seeks, the Defendant is obligated to pay to the Plaintiff 21,88,000 won and damages for delay calculated at the rate of 6% per annum under the Commercial Act from April 17, 2020 to December 23, 2020, which is the date of this decision, and 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

3. Conclusion

The plaintiff's claim shall be partly accepted within the extent of the above recognition.

Judges Cho Jong-ho