(영문) 대법원 2017.9.12.선고 2017다216509 판결

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

The defendant's appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. Judgment on the Plaintiff’s grounds of appeal

A. Regarding the standard for the settlement of the sales price and the scope of the obligations of the sales price

(1) Under 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"), in order to consider the terms and conditions as null and void on the ground that they are unfairly unfavorable terms and conditions to customers, such terms and conditions are somewhat disadvantageous to customers. It is insufficient to say that the standardized contract terms and conditions are somewhat unfavorable to customers, and it is not sufficient that the standardized contract contractor abused the position of the contracting party to the contract and used them against the legitimate interests of the contracting party and reasonable expectations, thereby impairing sound trade order. In addition, whether the terms and conditions are "unfairly unfavorable terms and conditions to customers" should be determined by comprehensively taking into account all the circumstances such as the content and probability of disadvantages that may arise to customers according to the terms and conditions, impact on the parties in the transaction process, influence on the parties, and provision of related Acts and subordinate statutes, etc. (see, e.g., Supreme Court Decision 2007Da16364817.

(2) In light of the following circumstances, the court below held that the sales contract of this case where Article 5 (1) of the sales contract of this case, which provides for the settlement of rental deposit according to the rent size of the store allocated after lottery, has violated the principle of good faith and has lost fairness, or has violated the obligation to explain the important contents of the terms and conditions to the defendant, which the plaintiff is the customer, so the above provision is null and void pursuant to the former Terms and Conditions Regulation Act, and thus, it should be revised to apply only within the scope of the increase or decrease of the public area in proportion to the increase or decrease of the exclusive use area.

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 co-ownership of all sectional owners.” Article 12(1) provides that “The shares of each co-owner are in proportion to his/her section of exclusive ownership.” Since the actual common use area of a sectioned store is in accordance with the ratio of the area of the section of exclusive ownership, it would normally be in accordance with the ratio of the area of the section of exclusive ownership, the increase and decrease of the area of common use area would be expected to be in proportion to the increase and decrease of the area of exclusive ownership if average and reasonable customers are in line with the ratio of area of exclusive ownership.

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 buyer, and applied the same to the seller, and filed a claim for settlement based on such standards. In the process, the Plaintiff did not specify or explain

(3) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the following facts are revealed.

① On September 2002, the E-project implementer promoted a new construction project of a commercial building called “F” (hereinafter referred to as “instant commercial building”) by implementing a market reconstruction project within the Dong-dong, Jung-gu, Seoul, where the land of the former B market, etc. was located, and the Plaintiff entered into a comprehensive implementation contract with the said reconstruction association for the reconstruction project.

② On September 28, 2006, the said reconstruction association opened an extraordinary general meeting of its members and made a resolution to include 1/2 of the passage area (so-called "sloping area") linked to each store in the common area of the relevant store when calculating the sale area, and to calculate the remaining common area in proportion to the exclusive area of the relevant store.

On August 21, 2008, the Plaintiff concluded the instant sales contract with the Defendant to sell the right of lease on the store of this case.

④ In the instant sales contract, the standard for exclusive use area of one unit is 3.9 square meters and the standard for the leased area of 13.22 meters (Article 1(1) and Article 6(2) of the instant sales contract provides that “The specific location of a store shall be drawn after the remainder payment is made and the sales price shall be settled according to the size of the store determined by lot.” Article 4(1) provides that “The leased area of a store shall be determined by adding the common area to the exclusive use area.” Article 5(1) provides that “If there is an increase or a decrease in the exclusive use area after drawing the store, the sales price shall be adjusted by adding the common area to the exclusive use area.” Article 5(1) provides that “The buyer shall settle the rental deposit according to the leased area of the store allocated after drawing the lot.”

(4) Examining the above facts in light of the legal principles as seen earlier, the judgment of 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 cases of a large-scale commercial building occupied by a large number of sectioned stores, it shall be located on the same floor.

Since the value of an individual store can considerably vary, reflecting the passage area abutting on the relevant store in calculating the common area, which serves as the basis for rental deposit, cannot be deemed as contrary to 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 of the sectioned stores, and that the remaining common area is calculated in proportion to its exclusive use area, it would have been expected that the sales price was calculated due to the increase and decrease in the size of the store after drawing at the time of the instant sales contract, and that the settlement method would have been an important concern for the contracting parties. In light of the fact that the Defendant was notified of the final settlement details of the sales price by the Plaintiff as well as the process of the instant sales contract and did not raise any objection thereto, even if the Defendant was well aware of, or was well aware of, the above contents from the time of the contract, it would have not affected the conclusion of the contract.

(5) Nevertheless, the court below held that the contract of this case should be interpreted as invalid in light of the purpose of the former Act on the Regulation of Terms and Conditions when interpreting the contract of this case according to its stated reasoning. Thus, the court below erred by misapprehending the legal principles on the former Act on the Regulation of Terms and Conditions, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

B. As to the completion of extinctive prescription of sales payments and outstanding claims

(1) Article 166 of the Civil Act provides, “The extinctive prescription of a claim which has a time limit runs from the time when the right can be exercised.” However, where the obligee and the obligor have agreed to defer the time limit after the time limit comes due, the time when the extended time limit comes to run again from the time when the changed time limit becomes due. The agreement on deferment of time limit changes to the time when the extended time limit becomes due. Not only explicitly but also explicitly and implicitly, the agreement on deferment of time limit may run again from the time when the changed time limit comes to the time when the contract becomes due. Whether an implied agreement on deferment of time limit exists in a contractual obligation should be determined by comprehensively taking into account all the circumstances, such as the process and content of the contract

(2) According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, Article 2 of the instant sales contract provides that the period during which the fourth part of the sales contract was due shall be April 25, 2009, and Article 2 of the instant sales contract shall be determined on October 25, 2009, respectively (Paragraph 2) where there is an increase or a decrease in the size of the remaining part of the sales contract after the store drawing (Paragraph 1), and the sales price shall be notified in writing to the purchaser where the payment date is changed (Paragraph 6), and Article 3 provides that the purchaser shall pay 19% late payment interest per annum where the purchaser fails to pay the purchase price within the due date. The Defendant did not pay the fourth part of the sales contract and the remainder on October 25, 209, based on the first part of the sales price, and the Plaintiff received the notice to the Defendant on October 31, 2010 after the completion of the distribution procedure, including the outstanding part and the remaining part payment amount.

(3) In light of the above facts and the following circumstances revealed through this, it is reasonable to view that the sales contract of this case was scheduled to settle the sales price after drawing lots from the time of its establishment, and it was premised on the fact that the payment deadline for intermediate payments and remainder can be changed in the process. The Plaintiff’s delay notice of payment on the fourth intermediate payments and remainder after the payment deadline specified in Article 3 of the sales contract of this case was delayed for more than six months, and thus, the Defendant’s interest is not likely to be inferred and the payment deadline for principal is delayed for more than six months. In light of the above legal principles, it is reasonable to view that the fourth intermediate payments and remainder claims under the sales contract of this case were implicitly changed on April 30, 2010. Accordingly, the court below erred by misapprehending the legal principles as to the period of extinctive prescription as to the claim of this case, which was the date following the changed execution date, and thus, the court below erred by misapprehending the legal principles as to the period of extinctive prescription as to the claim of this case.

2. Judgment on the Defendant’s grounds of appeal

A. (1) As to the assertion of misapprehension of the legal principles as to the cancellation, etc. of a juristic act on the ground of fraud or mistake, (1) declaration of intention may be cancelled if there is an error in the part. In a case where there is an error in the motive for the declaration of intent, it shall be possible to cancel the declaration of intent by mistake only when the parties have taken the motive into account as the content of the declaration of intent. The mistake in the part of a juristic act shall be so important that it would not have been made if there was no such a mistake, and it shall be so important to the extent that if the arb would have made the arb in the place of the arbr in which the arbr would not have made the declaration of intention (see, e.g., Supreme Court Decisions 93Da55487, Mar. 26, 1996; 200Da27510, Apr. 10, 200).

(2) At the time of the instant sales contract, the Plaintiff and the Defendant set the sales price based on 13.22m of the leased area per unit, and the sales price shall be determined based on the actual sales area of the stores allocated through lot in the future.

As seen earlier, in light of the contents of the instant parcelling-out contract including the method of settlement of the parcelling-out price, the rent per unit at the time of the instant parcelling-out contract was set to be smaller than the average parcelling-out area divided by the total number of units at the time of the instant parcelling-out contract. Even if the Defendant’s final parcelling-out price to be paid is determined according to the actual parcelling-out area of the store to be allocated by lot, it is difficult to deem that the rent per unit was smaller than the average parcelling-out area of the store to be allocated by lot. In light of the relevant legal principles and records, it is difficult to deem that the Defendant would have not concluded the instant parcelling-out contract if he was aware of the fact that the rent per unit was set to be smaller than the average parcelling-out area. In addition, even in light of the relevant legal principles and records, setting the rent per unit below the average parcelling-out area of the Plaintiff’s deceptive act or the Defendant

(3) Under the premise that it is reasonable to interpret that the sales contract of this case is to settle the sales price in proportion to the increase and decrease rate of the store's exclusive use area decided by lot, the court below held that the plaintiff's deception or the defendant's mistake in the sales area or the sales price cannot be deemed to have entered into the sales contract of this case. Although the reasoning of the court below is inappropriate, the conclusion that the sales contract of this case cannot be cancelled on the ground of fraud or mistake is just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the cancellation of legal act by fraud or mistake.

B. As to the misapprehension of legal principles on the interpretation of the terms and conditions and omission of judgment

(1) The reasoning of a written judgment is sufficient to indicate the judgment on the party’s assertion and other means of offence and defense to the extent that it can be recognized that the text is justifiable, and there is no need to determine all of the parties’ allegations or means of offence and defense (Article 208 of the Civil Procedure Act). Therefore, even if a court’s judgment does not indicate a specific and direct judgment on the party’s assertion, if it is possible to find the assertion or rejection in light of the overall purport of the reasoning of the judgment, it cannot be deemed an omission of judgment. Even if a court’s judgment did not indicate a specific and direct judgment on the party’s assertion, it cannot be deemed an omission of judgment if it is obvious that the assertion is rejected even if it was not actually determined, it does not affect the conclusion of the judgment, and it cannot be said that there is an error of judgment ex officio (see, e.g., Supreme Court Decisions 2009Da8631, Apr. 29,

(2) The court below held that Article 3 of the sales contract of this case, which provides for an overdue interest rate of 19% per annum more than the statutory interest rate stipulated in the Civil Act or the Commercial Act where a buyer delays the payment of the sales price, does not provide for the liquidated damages or penalty in the event the Plaintiff does not perform his/her obligations. However, in light of the nature of the duty to pay the sales price, the size of losses expected to delay the payment of the sales price, the statutory interest rate stipulated in the Act on Special Cases Concerning Restriction on Interest Restrictions or Promotion of Legal Proceedings, etc., and the ordinary transaction practices such as the interest rate of financial institutions and the overdue interest rate of 19% per annum, it cannot be deemed that Article 3 of the sales contract of this case, which provides for the overdue interest rate of 19%

(3) The above judgment of the court below is deemed to include the purport that the payment rate of 19% per annum is not unfair in cases where the defendant, the buyer of the sale contract of this case, delays the performance of the obligation to pay the sale price, and that the plaintiff, the seller of this case, does not have any provision on the interest rate in arrears in cases where the plaintiff delays the performance of such obligation. Even if the court below omitted the judgment on the defendant's assertion that Article 3 of the sale contract of this case is unfair, considering the relevant legal principles and records, it is obvious that the above provision is unfair, and thus, this part of the argument is dismissed. Therefore, it cannot be said

The lower court did not err in its judgment as otherwise alleged in the grounds of appeal by misapprehending the legal doctrine on the interpretation of the terms and conditions.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench