[1] Whether a claim arising from a unilateral commercial activity constitutes a commercial claim to which the extinctive prescription under Article 64 of the Commercial Act applies (affirmative), and whether Article 64 of the Commercial Act applies or applies by analogy not only to a claim arising from a commercial activity but also to a claim corresponding thereto (affirmative)

[2] In a case where Party B, etc., who bears expenses incurred in establishing a right to collateral security upon receiving a loan from Party A, sought a return of unjust enrichment equivalent to the expenses, etc., by asserting that the provision on the terms and conditions, which served as the basis for bearing such expenses, was null and void pursuant to Article 6 of the former Regulation of Standardized Contracts Act, the case holding that the aforementioned claim for return of unjust

[3] In a case where Gap bank used a document establishing a mortgage which contains a provision that "the burden of expenses shall be borne by marking ＋ in one of the three items in relation to the burden of mortgage expense" in connection with the application of additional interest rate while lending real estate to Eul et al., and Eul et al. bears the cost of establishing a mortgage with the choice under the above provision, the case holding that the judgment below erred in the misapprehension of legal principle, etc. in holding that the burden of expenses, such as Eul et al.

[4] The requirements and standard for determining the terms and conditions to be null and void on the ground that they are unfairly unfavorable clauses to customers, which are “a clause which has lost fairness in violation of the principle of trust and good faith”

[5] In a case where Gap bank entered into a contract with Eul et al. using a mortgage contract which contains a clause that "the burden of mortgage expense is borne by marking ＋ in one of the three items in relation to the burden of mortgage expense" in connection with the application of additional interest rate, the case holding that the above provision is not sufficient to be deemed null and void pursuant to Article 6 (1) of the former Regulation of Standardized Contracts Act as a standardized contract clause which unfairly gives customers disadvantage

[1] Articles 3 and 64 of the Commercial Act / [2] Articles 6(1) and (2)1 of the former Regulation of Standardized Contracts Act (Amended by Act No. 10169, Mar. 22, 2010); Article 741 of the Civil Act; Articles 3 and 64 of the Commercial Act / [3] Articles 2(1) and 4 of the former Regulation of Standardized Contracts Act (Amended by Act No. 10169, Mar. 22, 2010); Article 288 of the Civil Procedure Act / [4] Article 6(1) and (2)1 of the former Regulation of Standardized Contracts Act (Amended by Act No. 10169, Mar. 22, 2010) / [5] Article 16(1) and (2)1 of the former Regulation of Standardized Contracts Act (Amended by Act No. 10169, Mar. 22, 2010; Act No. 1961-2)

[1] Supreme Court Decision 2002Da64957, 64964 Decided April 8, 2003 (Gong2003Sang, 1079) Supreme Court Decision 201Da109500 Decided May 10, 2012 (Gong2012Sang, 995) / [4] Supreme Court en banc Decision 90Meu23899 Decided December 24, 1991 (Gong192, 652), Supreme Court Order 2007Ma1328 Decided December 16, 2008 (Gong2009Sang, 209Sang, 29Sang, 2013Da214864 (Gong2014, 1387) Decided June 12, 2014

Attached List of Plaintiffs (Law Firm Taesan, Attorneys Kim Jong-ju et al., Counsel for the plaintiff-appellant)

National Bank of Korea (Law Firm LLC, Attorneys Park Jae-sung et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na2012608 decided September 26, 2013

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The appeal and the grounds of appeal are examined.

1. As to the appeal by the plaintiff 9 et al.

Plaintiff 9, 10, 18 through 20, 25 through 27, 38 through 42, 44, 45, 47 through 50, 52, 54, 56, 59, 60, 62, 64, 65, 69, 71, 72, 74, 75, 77, 78, and 82 (hereinafter “35 persons including Plaintiff 9”) did not submit a statement of grounds for appeal within the statutory period, and the written appeal does not contain any description in the grounds for appeal.

2. As to the ground of appeal by the plaintiff 5 et al.

A claim arising from an act that constitutes a commercial activity, as well as a claim arising from an act that acts that acts as a commercial activity for both parties, constitutes a commercial claim to which the period of extinctive prescription of five years under Article 64 of the Commercial Act applies (see Supreme Court Decision 2011Da109500, May 10, 2012). In addition, Article 64 of the Commercial Act shall apply or applicable mutatis mutandis to not only a claim arising from a commercial activity but also a claim corresponding thereto (see Supreme Court Decision 2002Da64957, 64964, April 8, 2003).

According to the reasoning of the judgment of the court below, Plaintiffs 5, 15, 46, 57, and 66 (Plaintiff 15 is limited to the registration receipt number 1 omitted and registration receipt number 2 omitted from No. 84 of [Attachment 2] of the judgment below, and Plaintiff 46 is limited to the registration receipt number 1 omitted and No. 84 of the same contents; hereinafter “five persons including Plaintiff 5”) are limited to the above "mortgage-backed mortgage agreement,” which provides that when loans are granted by the Defendant who is a financial institution, as a stock company, from the time of receipt of each registration of each of the above "mortgage-backed mortgage agreement," the above "mortgage-backed mortgage agreement, which is a standardized contract presented by the Defendant to secure the obligation, set up a mortgage-backed security and bear related expenses, etc. as stated in the corresponding column of the "mortgage-mortgage-backed security agreement," and the basis for the burden lies in Article 10 of the above contract (hereinafter “the debtor’s liability”).

However, the five plaintiffs, including the plaintiff 5, asserted that the debtor-sharing clause of this case constitutes an unfair terms and conditions which are unfairly unfavorable to the customer and thus becomes null and void pursuant to Article 6 of the former Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010; hereinafter "the Act"). Thus, the defendant should return the unjust enrichment of this case equivalent to the cost of establishing the right to collateral security borne by the above five plaintiffs, including the plaintiff 5.

In light of the above facts and the legal principles as seen earlier, the claim for return of unjust enrichment in this case, which the above plaintiffs seek, was created based on the terms and conditions of the mortgage contract to be entered into by the defendant for business, such as loan transaction, and may be deemed to have been created based on the loan transaction agreement that constitutes a commercial activity. In light of the background leading up to the occurrence of the claim and the cause thereof, etc., it is necessary to promptly resolve the transaction relation. Thus, it is reasonable to deem that Article 64 of the Commercial Act is applicable during the period of extinctive prescription, and the period of extinctive prescription is five years (see Supreme Court Decisions 2001Da47825, Jun. 14, 2002; 2006Da63150, May 31, 2007, etc.).

Therefore, the judgment of the court below that held that the claim for return of unjust enrichment had already expired on May 25, 2012 after five years passed since five years passed since each of the plaintiffs 5 et al. paid the expense for creation of the right to collateral security (in the case of plaintiff 5 who was late paid the expense, the expense was disbursed on August 6, 2003). Thus, the judgment of the court below that the claim for return of unjust enrichment had already been extinguished by prescription is acceptable as the same purport. In addition, unless the judgment of the court below did not err in the misapprehension of law, the general legal principles as to the person liable for the payment of the expense for creation of the right to collateral security and the general legal principles as to whether the debtor's expense provision of this case constitutes Article 6 of the Act

3. As to the ground of appeal by 46 plaintiffs including the plaintiff 1

A. We examine whether the above plaintiffs' loan expense burden complies with the agreement based on the terms and conditions.

(1) According to the reasoning of the lower judgment, the Plaintiffs except for the Plaintiffs 35 and 5, 57, and 66 (Plaintiff 15) (hereinafter “Plaintiff 15”) entered into a contract with the following eight types of standard contractual terms and conditions (hereinafter “instant standard contractual terms and conditions”), such as the bank credit transaction terms and conditions, mortgage contract, etc. prepared and presented by the Defendant when obtaining real estate security loan from the Defendant, the Plaintiffs (hereinafter “Plaintiff 15”) omitted the receipt number 33 of the registration receipt No. 84 of the attached table No. 84 of the lower judgment, and Plaintiff 46 are limited to the omission of the receipt number of the registration No. 84 of the same contents, and the receipt number of the registration No. 5 of the registration No. 84 of the lower judgment; hereinafter “Plaintiff 1, etc.”) and, in the case of the contract, etc., each of the following terms and conditions should be explicitly divided into the Plaintiff 1 and the bank’s additional terms and conditions including the Plaintiff’s expenses, etc. ” and the Plaintiff 4 of this case.

(2) The lower court determined to the effect that: (a) the instant multiple-choice-choice-sharing clause is intended to include the outcome as a result of contract negotiation in advance and to include it as a result of choice; (b) the result was more convenient than the direct outcome after contract negotiation; and (c) the financial institution, which used the standardized terms and conditions in the loan transaction using the standardized terms and conditions in this case, choose the financial institution to bear the cost by itself; and (d) the same customer, when concluding a loan agreement with the same financial institution, may not be deemed to have been unilaterally selected against the customer regardless of the customer’s intent, such as the mixing of the choice of the customer’s cost and the selection of the financial institution’s cost burden; and (e) the burden of the cost pursuant to the agreement based on the selective-choice

(3) However, this case’s multiple-choice burden clause, however, appears to fall under a standardized contract under Article 2(1) of the Act, which was prepared by the Defendant in advance with certain forms so that the contract can be concluded within the scope of selective items stipulated in the pertinent provision in order to conclude the contract with multiple counterparts (see Supreme Court Decision 2008Du23184, Oct. 14, 2010). Furthermore, in light of the aforementioned legal principles, in order for the contract contents under the instant multiple-choice burden clause to be recognized as an individual agreement between the Plaintiff 1 and 46 and the Defendant, it is insufficient solely because the choice was made according to the selective items stipulated in the instant multiple-choice burden clause, and the above plaintiffs’ selection was almost equal to the Defendant. After sufficiently reviewing and considering the degree of the burden and burden, it is not bound by the limited selective items stipulated in the instant multiple-choice burden clause, and there is an opportunity to adjust the interests of the above Plaintiffs by changing the contents thereof, and it must be argued by the Defendant.

(4) However, the lower court did not examine the Defendant’s assertion and certification as to the individual and specific circumstances, but determined that the said Plaintiffs’ loan expense burden was based on an individual agreement solely on the circumstances in its holding. Therefore, the lower court erred by misapprehending the standard of determining whether an agreement based on the terms and conditions of a contract constitutes an individual agreement or by misapprehending the legal doctrine on the burden of proof.

B. We examine whether the instant multiple-choice-choice-sharing provision falls under Article 6(1) of the Act and thus invalid.

(1) Under Article 6(1) and (2)1 of the Act, in order to be deemed null and void on the ground that the standardized contract clause is an unreasonably unfavorable clause against a customer, it is insufficient to say that the standardized contract clause is somewhat unfavorable to the customer. It should be recognized that the standardized contract maker abused his/her position in trade and prepares and uses a standardized contract clause contrary to the principle of trust and good faith against the legitimate interests and reasonable expectations of the contracting party, thereby impairing the sound trade order. In addition, whether the standardized contract clause constitutes “unfairly unfavorable clause to the customer” as the ground for invalidation of the standardized contract should be determined by comprehensively taking into account all the circumstances such as the content and disadvantages that may arise to the customer under the standardized contract, the probability of disadvantages that may arise to the customer, the impact on the transaction process between the parties, and the provisions of related Acts and subordinate statutes (see, e.g., Supreme Court en banc Decision 90Meu23899, Dec. 24, 191; Supreme Court Order 2007Ma28, Dec. 16, 2008).

(2) In addition to the provisions of the Act, the reasoning of the lower judgment and the evidence duly admitted reveal the following circumstances.

(A) The standard terms and conditions of this case are the standard terms and conditions approved by the Korea Federation of Banks (hereinafter “the Korea Federation of Banks”) through prior examination by the Fair Trade Commission pursuant to Article 19-2 of the Act around December 2002. As seen earlier, the standard terms and conditions of this case include the instant multiple-choice clause.

(B) On January 1, 2005, the Fair Trade Commission received a request from a consumer organization, etc. to revise the revised standard terms and conditions, and revised the Act to specify the person to be borne in advance and specifically by each expense through the recommendation procedure for the request for examination of standard terms and conditions pursuant to Article 19-2 of the Act. On February 11, 2008, the Korea Federation of Banks and national banks, etc. made a disposition of using the amended standard terms and conditions (hereinafter “instant amended standard terms and conditions”).

(C) The standard terms and conditions system under Article 19-2 of the Act was established in order to establish a sound trade order and prevent unfair terms and conditions from being widely used. The Fair Trade Commission’s administrative decision that a request for the use of standard terms and conditions in a certain business area constitutes an unfair terms and conditions, etc., which reflects the economic conditions in a certain business area and the various interests of its members and encourage the use thereof to prevent damage to many customers. The above provision of the Act provides separate procedural requirements and legal effects from the provisions of Articles 6 through 14 and 17 of the Act, taking into account the purpose of the disposition system for the use of standard terms and conditions and the purport of the disposition system for the use of standard terms and conditions.

(D) The Fair Trade Commission amended the instant multiple-choice clause as the amended standard terms and conditions and recommended the use thereof, taking into account the policy aspect to prevent consumer complaints and disputes and to establish order in fair trade by reflecting the purpose of the standardized terms and conditions system. As such, it seems that the Fair Trade Commission made an administrative decision in order to ensure that customers can easily choose the loan products by reducing information search cost on the cost of creating security rights and by comparing only loan interest rates of financial institutions, while at the same time, financial institutions can easily choose the loan products by making efforts to reduce loan costs, thereby promoting customer convenience and promoting competition among financial institutions.

(E) In addition, prior to the enforcement of the standardized terms and conditions in the former standardized terms and conditions, prior to the enforcement of the standardized terms and conditions in this case, the instant multiple-choice clause was prepared in order to protect the interests of the customers by specifying the opportunity for the customers to choose a choice that may escape from total amount of the burden as the standardized terms and conditions, and thus, was recognized as the standardized terms and conditions subject to prior examination and approval by the Fair Trade Commission. Moreover, as recognized by the lower court, in cases where the customer selects the cost of creating a security right pursuant to the instant selective-choice clause, compared to the case where the financial institution bears the cost, the transaction can

(3) Examining the specific contents of the instant selective-choice-sharing clause and the circumstances before and after the amendment of the standard terms and conditions in this case, and various circumstances such as the possibility of disadvantage and occurrence that may arise to customers pursuant to the instant selective-choice-sharing clause, impact on the transaction process between the parties, and the contents and legislative purport of the provisions of the Act on Unfair Terms and Conditions, etc., in light of the legal principles as seen earlier, it is insufficient to view the instant selective-choice-sharing clause as the standardized terms and conditions that unfairly disadvantage customers, such as undermining sound trade order, and thus, it is insufficient to view the instant selective-choice-choice-sharing clause as constituting “a standardized contract which becomes unfair in violation of the principle of trust and good faith,” which is invalidated pursuant to Article 6(1) of the Act (see, e.g., Supreme Court Decision 2013Da214864,

Therefore, since the cost of establishing a right to collateral security borne by 46 Plaintiffs 1 and others pursuant to the instant multiple-choice clause cannot be deemed as having no legal ground, the said Plaintiffs’ claim for return of unjust enrichment seeking such return cannot be accepted.

In so doing, the lower court did not err by misapprehending the principle of trust and good faith or the legal doctrine on the invalidation of terms and conditions as alleged in the grounds of appeal.

C. Therefore, even if the lower court erred by misapprehending the legal doctrine regarding the determination of whether a separate agreement constitutes an individual agreement as seen above, the conclusion that the instant multiple-choice clause cannot be deemed null and void as it falls under Article 6(1) of the Act is justifiable to accept the claim for return of unjust enrichment by 46 Plaintiffs 1 and 46 persons, and thus, it cannot be deemed that there is an error of law

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: omitted

Justices Shin Young-chul (Presiding Justice)