Man-rognbC Co., Ltd.

Defendant (Law Firm Cheong, Attorney Kim Jong-tae, Counsel for the defendant-appellant)

October 11, 2016

Seoul Central District Court Decision 2015Da5182179 Decided February 17, 2016

1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed.

2. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 63,83,800 won with 19% interest per annum from May 1, 2010 to the service date of the original copy of the instant payment order, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

The reasoning for this part of this Court is that the corresponding part of the judgment of the court of first instance is the same as that of the judgment of the court of first instance.

2. Standards for the settlement of sale price and the scope of obligations for sale price;

A. The plaintiff's assertion

1) The instant lease agreement plans the settlement of the purchase price following the increase or decrease in the size of a store determined by lot. Of the sale price, the “the remainder of the sale price excluding rental deposit” shall be settled in proportion to the increase or decrease rate of the leased area pursuant to Article 4(1) of the instant lease agreement. On the other hand, the “rental deposit” shall be settled in proportion to the increase or decrease rate of the leased area added to the leased area pursuant to Article 5(1). Meanwhile, the standard area for exclusive use stipulated in the instant lease agreement is 3.9 square meters and the standard area for sale is 13.22 square meters.

2) The initial sale price is KRW 259,050,00 (i.e., KRW 86,350,000) (i.e., KRW 86,350,00). The Defendant’s settlement amount of the instant store allocated by drawing is KRW 16,687,70, KRW 280, KRW 16,687,70 of the second underground floor △△△△, KRW 13,809, KRW 29,900, KRW 13,416,00 of the address address of the second underground floor 29,293,800, and the total sale price is KRW 288,343,800 (=259,050,000 + + KRW 29,293,800).

3) Therefore, the Defendant is obligated to pay to the Plaintiff the total purchase price of KRW 63,83,800, excluding the already paid KRW 224,510,000, and delay damages therefor.

B. Defendant’s assertion

In light of the relevant provisions of the Act on the Regulation of Terms and Conditions, the term “lease area” in the latter part of Article 5(1) of the Lease Contract of this case shall be deemed to mean only the “exclusive area” rather than the area for public use. Therefore, the entire sale price, including the rental deposit, should be settled in proportion to the increase and decrease rate of exclusive use area.

C. Determination

1) Reasons for the allocation of the common area that is not proportional to the exclusive use area

In full view of the evidence presented, the non-party union obtained the approval of the management plan on May 15, 2006, which includes the exclusive use area and the common use area, and the public use area was determined to be calculated by dividing the exclusive use area by the exclusive use area and the common use area. On September 28, 2006, the non-party union obtained the approval of the management plan that, when calculating the exclusive use area from the special general meeting of the union members, 1/2 of the passage area adjoining each sectional store (hereinafter referred to as the "connection area") shall be included in the common use area of the relevant store and reflect the contact area and the remaining common use area shall be calculated in proportion to the exclusive use area of the relevant store. The non-party union obtained the approval of the management plan around July 2010 on the changed matters, and obtained the approval of the use after completion, and as a result, the public use area reflected the contact area of each sectional store including the store in this case, and regardless of the increase or decrease in the exclusive use area.

2) Interpretation of the language of the lease contract concerning settlement of accounts

The instant lease contract provides that the standard for exclusive use area of one unit shall be 3.9 square meters (Article 1(1)); the principle that the sales price shall be settled in the event of an increase or decrease in the area after the drawing of a store (the latter part of Article 1(2) and Article 2(1)); furthermore, Article 4(1) provides that the sale price shall be settled in proportion to the increase or decrease in the exclusive use area; and Article 5(1) provides that the “rental deposit” of the sale price shall be settled in proportion to the increase or decrease in the leased area.

Although the meaning of "lease area" under Article 5 (1) of the Lease Contract of this case is not clear in itself as to the pertinent provision, it is clearly distinguishable from the "sale area" or "lease area," and the former part of Article 4 (1) of the Lease Contract of this case provides that "lease area" shall be "the area added to the exclusive use area," and Article 6 (1) provides that rent shall be determined based on "13.22 square meters of the exclusive use area," it is reasonable to deem that "lease area" under Article 5 (1) of the Lease Contract of this case is not "exclusive use area," but "area added to the exclusive use area."

Therefore, if the language and text of the provision on settlement following the increase and decrease in the area of the instant lease contract is interpreted as it is, the “rental deposit” out of the sale price shall be adjusted according to the increase and decrease rate of the area added to the exclusive area in accordance with Article 5(1) and the “the remainder of the sale price excluding the rental deposit” shall be adjusted according to the increase and decrease rate of the area added to the exclusive area in accordance with Article 5(1).

3) Revised interpretation of Article 5(1) of the Lease Agreement of this case

According to the Act on the Regulation of Terms and Conditions, Article 6(1) of the same Act provides that any clause that is unfair in violation of the principle of trust and good faith shall be null and void. Paragraph (2) of the same Article provides that any clause that is unreasonably unfavorable to a customer, any clause that is difficult for a customer to anticipate in light of all relevant circumstances, such as the type of contract transaction, and any provision that limits essential rights under a contract so that the purpose of the contract may not be achieved, shall be presumed to be null and void. Furthermore, Article 10 Subparag. 1 provides that any clause that grants an enterpriser an authority to unilaterally determine or change the contents of the contract without reasonable grounds for the performance of obligations shall be null and void. Article 16 of the same Act provides that a part of the terms and conditions cannot be the content of the contract pursuant to Article 3(4) of the Act on the Regulation of Terms and Conditions, or are null and void pursuant to Articles 6 through 14, the contract remains null and void only on the other part.

The principle of trust and good faith, which acts as the content control principle as above, refers to the principle of conduct that the terms and conditions unilaterally are prepared by an enterpriser and are concluded by a customer without sufficient opportunity to review or confirm the specific contents of the terms and conditions. In light of the process of formation of a contract, the person who prepared the terms and conditions refers to the principle of conduct that the terms and conditions shall prepare the terms and conditions in an equitable manner without going against the legitimate interest of the contracting party and reasonable expectations or trust, and even if the preparation of the general terms and conditions falls under the area of private autonomy, the terms and conditions contrary to the above principles of conduct are subject to correction, control, i.e., correction of the terms and conditions by the court, because they go beyond the limits of private autonomy. This interpretation is possible not only where the whole terms and conditions constitute grounds for invalidation, but also where a part of the terms and conditions constitutes grounds for invalidation and can remain effective only with the remainder (see Supreme Court en banc Decision 90Meu23899, Dec. 24, 19

In the case of selling an unbuilt aggregate building in advance, the area of the object of sale can be inevitably changed due to the change of the business plan, such as design change in the construction process. Therefore, in preparation for such a case, it is difficult to see that the terms of the terms of the contract to settle the sale price according to the increase or decrease

However, Article 10(1) of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act on the Ownership and Management of Aggregate Buildings") provides that "the section for common use belongs to the co-ownership of all sectional owners: Provided, That the section for common use which is obvious that only some sectional owners are provided for public use belongs to their co-ownership." Article 11 provides that "each co-owner may use the section for common use according to its intended use." Article 12(1) provides that "The shares of each co-owner shall be in proportion to his/her section for common use." Article 10(2) provides that "The matters provided for in Article 12 may be otherwise determined by regulations."

As such, the share of the sectional owner on the section for common use under the Act on the Ownership and Management of Aggregate Buildings is determined according to the ratio of the area of the section for exclusive use. Since the common use area of the section for exclusive use is usual transaction practice, if average and reasonable customers intend to increase or decrease the area for exclusive use in the contract for exclusive use in the unit, and if the contract provides for the settlement accordingly, it is expected that the increase or decrease of the area for common use should be made in proportion to the increase or decrease of the area for exclusive use, and it is difficult to expect that the area for common use should be allocated among the divided stores of the same class according to other standards, such as the contact area,

However, since the terms and conditions of this case do not stipulate the standards or methods for calculating the sale area, if interpreted as they are, it may cause unreasonable consequences contrary to the legitimate interests and reasonable expectations of the customers by adjusting the rental deposit based on the "sale area added by the area that is not proportional to the increase or decrease of the exclusive use area" which can be unilaterally determined after the contract by the business

Article 5(1) of the Lease Contract of this case provides a business operator with the right to unilaterally determine the settlement standards after the contract, so it is unreasonable for customers to expect in light of all relevant circumstances, such as the type of contract transaction, etc., and it is reasonable for customers to unilaterally determine or change the contents of payment without reasonable grounds.

Therefore, in a case where it is deemed that “an increase or a decrease in the leased area” in Article 5(1) of the instant lease sale contract, which serves as the basis for the settlement of rental deposit, includes “an increase or decrease in the leased area, which is not proportional to an increase or decrease in the exclusive use area,” the said provision shall be deemed null and void in light of the provisions of the said Act

In addition, the terms and conditions should be interpreted objectively and uniformly in accordance with the language and text, so it should be deemed that the Plaintiff’s distribution of a public area lower than that according to the increase in exclusive use area after the fact does not affect the interpretation of the above terms and conditions, even if some of

Ultimately, Article 5(1) of the instant lease agreement needs to be amended to apply only within the scope of “an increase or decrease in the common area in proportion to an increase or decrease in the exclusive use area” except for the cases as above invalidity, and such interpretation ought to be deemed to be maintained as a valid provision within the modified scope. The lease deposit must be adjusted in proportion to the increase or decrease in the exclusive use area (the same shall apply to the increase or decrease in the exclusive use area) by adding the common area proportional to the increase or decrease

4) Violation of duty of explanation

Even in cases where Article 5(1) of the Lease Contract of this case is interpreted as valid even in cases where the settlement is made as “the exclusive area plus the common area that is not proportional to the exclusive area,” whether the Plaintiff may assert it as the content of the contract.

Since the criteria and method for the settlement of rental deposit corresponding to the sale price has an important impact on the conclusion of the lease sale contract, the plaintiff is obligated to explain in detail the terms and conditions so that customers can understand the terms and conditions.

The plaintiff did not follow 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 the ordinary practices, and applied unilaterally separate standards set by the defendant and others without the consent of the purchaser, and requested settlement based on such standards. The plaintiff did not specify or explain the allocation and settlement standards of the common area to the purchaser, including the defendant.

Furthermore, since the method of calculating the above public area was general and common in the transaction, it cannot be deemed that the Defendant and the buyers could have sufficiently predicted without any separate explanation.

Therefore, the Defendant cannot claim the standards and methods of the above settlement as the content of the contract, but even if the standards and methods for the settlement asserted by the Plaintiff due to breach of duty of explanation do not constitute the content of the contract, the settlement of the sale price pursuant to the “increased rate of increase and decrease of the sale area added to the increase and decrease of the exclusive use area” could have been sufficiently anticipated without any separate explanation from the Defendant and the buyer. Accordingly, the security deposit should be settled in proportion to the “sale area added to the increase and decrease of the exclusive use area” in accordance with the effective terms and

5) Sub-committee

The exclusive use area of the store of this case does not change, and since only the sale area increases, there is no amount of settlement of rental deposit to be paid by the defendant.

Therefore, barring special circumstances, the Defendant is obligated to pay to the Plaintiff the remainder of KRW 34,540,000 (=259,050,000 - 224,510,000) out of the initial sale price and damages for delay.

3. Judgment on the defendant's assertion of extinctive prescription

(a) The completion of extinctive prescription;

1) The Defendant asserts that the extinctive prescription period for commercial claims has expired five years from October 25, 2009, the remainder of 34,540,000 won, excluding the settlement amount, for the remainder of the settlement amount.

2) The claim for the sale price under the lease contract of this case is a commercial bond and the five-year extinctive prescription is applied to the claim for the sale price under the lease contract of this case. According to Article 2(2) of the lease contract of this case, the due date for the remainder of the claim for the sale price is October 25, 2009, and the payment order of this case was applied on March 9, 2015, which was more than five years thereafter. Thus, the extinctive prescription of the claim for the sale price was completed.

3) As to this, the Plaintiff intended to settle the sales price according to the increase or decrease in the size after the location and size of the sales price by lot, etc. was determined in the instant lease agreement, the Plaintiff asserts that the extinctive prescription of the claim for the sales price is run from the time when the Plaintiff becomes due after the expiration of the period of payment after notifying the Defendant of the remaining sales price after deducting the settlement price from April 30, 2010.

According to the lease contract of this case, the plaintiff and the defendant set the occupancy of the commercial building of this case into December 2009 (Article 1(2)), the location of the store shall be determined by lot two months prior to the occupancy period designated by the plaintiff (Article 7(1)), and the fact that the contract was concluded to settle the sale price according to the increase or decrease in the size of the store by lot (Articles 1(2), 4(1) and 5(1) is recognized.

However, notwithstanding the aforementioned settlement provisions, in light of the fact that the payment date of the remainder of the sale price in the instant lease agreement was specified as October 25, 2009 (Article 2(2)), and the specific shop location was agreed to draw lots after the payment of the balance (Article 1(2)), it is reasonable to deem that the Defendant’s obligation to pay the remainder of the sale price is a debt with the fixed time limit, and the Defendant’s obligation to pay the balance of the sale price was already due to the increase or decrease in the size of the area due to the store drawing, etc., and the due date was already due on October 25,

Furthermore, as seen earlier, it is recognized that around March 19, 2010, after the Plaintiff allocated a store, the Plaintiff notified several buyers including the Defendant to pay the balance of the sales price by April 30, 2010. However, it cannot be deemed that the Defendant given up the period of extinctive prescription that the Plaintiff unilaterally extended or postponed the payment deadline without the Defendant’s request, source, and agreement, or that the extinctive prescription run from the due date of payment notified by the Plaintiff.

Therefore, the plaintiff's above assertion is without merit.

B. Whether to interrupt extinctive prescription

1) Whether extinctive prescription is interrupted due to the response filing

The plaintiff asserts that the defendant's invalidity of the lease contract of this case is invalid and that the statute of limitations of the claim for the sale price was interrupted by the defendant's response in the lawsuit to return the sale price against the plaintiff.

In general, a judicial claim under Article 168 subparagraph 1 of the Civil Act and Article 170 (1) of the Civil Act refers to cases where a right holder claims as the defendant a right-holder who claims the prescription in the form of a lawsuit, which is a subject matter of lawsuit. However, in contrast to this, the defendant's response to the filing of a lawsuit by a person who claims the prescription as the plaintiff and actively claims the right in the lawsuit and accepted it (see Supreme Court en banc Decision 92Da47861 delivered on December 21, 1993, etc.).

In full view of the evidence submitted, the defendant asserted the cancellation or invalidity of the lease agreement of this case against the plaintiff et al. on February 23, 2010, and sought the return of the sale price already paid, or filed a lawsuit claiming damages on the grounds of false or exaggerated advertisement by the plaintiff et al. (Seoul Central District Court 2010Gahap17982). The plaintiff responded to this and denied the cause of the claim by the defendant et al., and the judgment against the buyer et al. was rendered on June 13, 2013.

However, the Plaintiff’s above response merely asserted the existence of the obligation to return the sale price or the obligation to compensate for damages claimed by the buyer such as the Defendant, etc., and it cannot be deemed that the interruption of extinctive prescription has become effective since the Plaintiff actively asserted the existence of the claim for the sale price, which is the subject of interruption of prescription, and exercised the right corresponding to a judicial claim. Therefore, there

2) Whether extinctive prescription is interrupted due to peremptory notice

A) The Plaintiff asserts that the statute of limitations has been interrupted due to the Plaintiff’s peremptory notice, since the Plaintiff notified the Defendant twice of the payment of the sale price and applied for the instant payment order before six months elapse thereafter.

In full view of the purport of the entire pleadings, the Plaintiff sent a notice demanding the payment of the unpaid purchase price of KRW 63,83,800 on September 23, 2014 and November 11, 2014, to the Defendant’s address as stated in the instant lease agreement, but the Plaintiff was returned as the absence of closure two times. In light of the above, the Plaintiff’s notice of the payment of sale price cannot be deemed to have become effective as the cause of interruption of extinctive prescription because it did not reach the Defendant, and thus, the Plaintiff’s above assertion is without merit.

B) As to this, the Plaintiff asserts that the notification of the Plaintiff sent to the Defendant’s address as stated in the contract pursuant to Article 8 of the Lease Contract of this case is deemed to have reached. Thus, the Plaintiff’s notification of the payment of the purchase price

On the other hand, Article 7(2) of the lease contract of this case provides that "the notice related to the lease sale contract of this case, such as the change of the payment date of the price, the notice of the date of drawing lots, the cancellation of the lease contract due to non-performance of obligation, and the cancellation of the lease sale contract of this case, shall be the address specified in the lease sale contract and shall be deemed to have been received by the buyer regardless of the receipt of the buyer at the arrival of the contract." However, the terms and conditions of the above contract merely mean that the contract of this case merely mean that the notice of the plaintiff reached an objective area under the control of the buyer, which enables the buyer to know the contents of the notice, takes effect, regardless of whether the notice was actually received, and cannot

Even if Article 7(2) of the terms and conditions of the lease agreement of this case is deemed to have reached the delivery of notice, Article 12(3) of the Act on the Regulation of Terms and Conditions provides that, among the terms and conditions as to the expression of intent, the provision that regards the terms and conditions of the contract as having reached the customer without reasonable grounds that the expression of intent that may seriously affect the customer’s interest shall be deemed to have reached the customer shall be null and void. However, even if the Plaintiff was negligent in not aware of the changed address, etc. of the purchaser or of the changed address, etc., although he could have known the change of address, etc., or of the changed address, etc., if he neglected to do so, it would be deemed that the Plaintiff’s expression of intent that may seriously affect the customer’s interest would have reached the customer without reasonable grounds, and thus, it shall be interpreted that the terms and conditions of the above contract apply only where the Plaintiff did not know the changed address, etc. of the obligor without negligence (see Supreme Court Decision 9Da35379, Oct. 10, 200

However, according to the statement in Gap evidence No. 1, the lease contract of this case can be acknowledged that the defendant's home and mobile phone number are indicated, and the plaintiff neglected to contact the defendant by telephone when the above notice was returned, and even if he could have been given a peremptory notice in writing or by telephone, it cannot be recognized that the contract of this case reached the peremptory notice pursuant to the above provision.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. Since the conclusion is unfair in the part against the defendant among the judgment of the court of first instance, the defendant's appeal is accepted, and the plaintiff's claim corresponding to the revoked part is dismissed. It is so decided as per Disposition.

[Attachment]

Judges Kim Young-young (Presiding Judge)