2012Gaba 1980 Return of the purchase price

A

1. The term "biopia" corporation

December 18, 200

February 19, 2013

1. At the same time, the Defendant received vehicles listed in the separate sheet from the Plaintiff, and at the same time exceeds KRW 55,928,890 and the said money to the Plaintiff:

(a) From July 23, 201 to KRW 2 million:

(b) From July 29, 201 for KRW 38,996,00: (c) from August 30, 201 for KRW 2,986,578;

(d) From September 29, 201 for KRW 2,986,578:

E. As to KRW 2,986,578, the amount calculated by applying each rate of KRW 20% per annum from October 29, 2011 to KRW 2,986,578; (f) from November 29, 2011 to KRW 2,986,578; and (g) from December 29, 201 to January 18, 2012 to KRW 20% per annum from the following day to the date of full payment.

2. The plaintiff's remaining main claims are dismissed.

3. Of the costs of lawsuit, 30% is borne by the Plaintiff, and the remainder 70% is borne by the Defendant, respectively. 4.1 can be provisionally executed.

1. Mainly, the Defendant: (a) Of the aforementioned money and KRW 55,928,890 to the Plaintiff; (b) from July 23, 201 to KRW 38,96,00 for KRW 2 million; (c) from July 29, 201 for KRW 2,38,986,578, from August 30, 201 to KRW 2,986,578; (d) from September 29, 2011 for KRW 2,986,578, from the date following the date of full payment; (b) from the date of full payment for KRW 2,986,578 until the date of full payment; and (c) from the date of full payment for KRW 2,98,578 to the date of full payment for KRW 2,98,000 until the date of full payment; and (d) from the date of full payment for KRW 2,986,578,20 each year.

2. Preliminaryly, the Defendant: (a) delivered the Plaintiff a 201-type BMW 740LI car ( color 290 Sopto grey briant car) to the Plaintiff; and (b) performed the procedure for the registration of ownership transfer in the Plaintiff’s name on July 22, 2011, before delivering the said automobile to the Plaintiff.

1. Fact that the determination is based on the premise (not in dispute);

A. On July 22, 2011, the Plaintiff purchased KRW 120,240,000 from the Defendant for a vehicle with 2011 MW 740 Li (referring to a vehicle with a six automatic transmission device, which has a change in its color 290 Sophito grey brist, with a flow of hydrotensions) at the price of KRW 122,40,000. On the other hand, on July 28, 2011 for the payment of the purchase price, the Plaintiff purchased KRW 36 months of the contract period, 91,1363, 2363, 2, 986, 578, and concluded the installment contract with Nonparty 200, the Plaintiff paid KRW 30,000 as the purchase price to the Defendant, and the Plaintiff paid KRW 20,000,000,000 from 20,000 won to Nonparty 18,208.

B. On August 2, 2011, the Plaintiff: (a) delivered a motor vehicle listed in the separate sheet (hereinafter referred to as the “motor vehicle of this case”) from the Defendant on August 2, 201; (b) started operation from around that time; (c) however, since September 5, 2011 during the operation of the motor vehicle of this case, the following defects have occurred, such as engine warning, etc., and received repair after having entered the Defendant’s Incheon Services Branch on September 8, 201 (the odometer 614km).

- 그 후, 2011. 9. 12.경부터는 주행속도를 감속할 때 갑자기 무거운 물체로 차량을 충격하는 듯한 "쿵"하는 소음과 함께 차체가 순간적으로 앞으로 크게 덜커덕거리는(또는 기어가 빠지는 듯한) 변속충격이 발생하여 2011. 9. 23. 재차 인천서비스 지점에 입고시켜 수리를 맡겼는데, 2011. 9. 27. 인천서비스 지점으로부터 이 사건 차량의 점검 결과 '변속충격이 있다'는 사실을 확인하였고, 프로그램 및 어답테이션 값 삭제후 정상작동되자 시운전테스트 실시후 출고되었다(주행거리 1146m, 다만 변속충격의 정도에 관해서는 뒤에서 보듯이 당사자간 다툼이 있다).

In addition, on October 3, 2011, it was judged that it is difficult to operate the instant vehicle more severe speed than the previous one due to the occurrence of a more severe shock from the starting point of the instant vehicle, and it was determined that it was difficult to contact the BMW Emergency Call Service Center to enter the Defendant’s Incheon Service Branch and suspended the vehicle operation (the odometer 1548m), the vehicle inspection results re-verification of the occurrence of speed shock, and the re-verification of the vehicle inspection results, and the normal operation after the deletion of the re-program and the language test value.

After all, on October 7, 201, the Incheon Service Branch explained that the Plaintiff should replace the entire automatic transmission period of the instant vehicle.

- Accordingly, on October 11, 201, the Plaintiff sent his opinion to the Defendant that the repair method would be sought without exchanging an error on the part of the Defendant. However, on October 14, 2011, the Plaintiff was instructed by the Defendant that the Plaintiff should exchange the entire recreation with the Defendant.

- After the above date, the Plaintiff has suspended the operation of the instant vehicle and stored it in the Incheon Service Branch of the Defendant.

C. Summary of the parties’ assertion

(1) The plaintiff's assertion

0. A device transmitting power generated from an engine to a necessary re-power depending on speed, which serves as a very important part of a number of motor vehicle parts. In the event of an occurrence of a problem in the operation of a motor vehicle, it makes the normal operation of the motor vehicle impossible and causes a fatal problem in safety. Therefore, a defect arising from abnormal operation of a changer constitutes an important defect that makes it impossible to achieve the purpose of the motor vehicle sales contract. The Plaintiff seeking the return of the purchase price already paid and statutory interest, as a restoration from the cancellation of the sales contract, by its primary claim.

0 In addition, according to Article 581(2) of the Civil Act, the buyer's right to claim the payment of complete goods can be recognized without relation as to whether the purpose of the contract can be achieved due to the defect and the buyer's right to claim the delivery of the substitute vehicle.

(2) The defendant's assertion

On the contrary, the defendant asserts as follows.

0 먼저, 이 사건 차량에는 원고가 주장하는 정도로 중대한 하자가 없다. 원고가 주장하는 변속충격의 하자는 일반적인 무상보증수리로 충분히 정비가 가능한 하자일 뿐이다. 즉, 이 사건 차량은 주행속도 시속 20~25m로 운행하면서 감속하는 경우에 자동변속기의 기어가 3단에서 2단으로 변속되면서 미세한 충격이 발생하는 하자가 있는데, 그 정도는 주행모드에서 운전석 시트를 "툭"하고 건드리는 정도의 변속충격일 뿐, 원고가 주장하듯이 "쿵"하는 정도의 심한 충격은 아니다. 그리고 이러한 하자는 무상보증수리의 범위 내에서 변속기의 프로그램 수정 또는 변속기 내부의 부품교체, 변속기 교체 등 단계적인 수리방법으로 충분히 해결할 수 있다.

0 In addition, "cases where the purpose of the contract cannot be achieved" under Articles 580 (1) and 575 (1) of the Civil Act refers to cases where it is impossible to maintain a motor vehicle even if the purpose of the contract cannot be achieved, and in the case of the motor vehicle of this case, it does not constitute cases where the purpose of the contract can not be achieved because the motor vehicle of this case is sufficiently improved through the above repair process

0. Meanwhile, even in the case of a claim for full payment of goods, the degree of defects existing in the instant vehicle is insignificant or may not be recognized as being the case causing excessive disadvantages to the Defendant, the seller, and the seller. In particular, in the case of goods, such as a vehicle, the price of which sharply drops at the same time as the vehicle is withdrawn and registered (in the case of Germany, it is known that the value loss would amount to 15% at the same time as the vehicle registration, and in the case of Germany, it is known

D. Results of appraisal of the instant vehicle

In the result of the B appraiser's appraisal on the instant vehicle conducted by the Defendant's motion, the following contents were revealed.

0. On the other hand, when the speed of the vehicle is reduced by bracing the quith's quith power into the contact force of brac peds, computers which control the engine by reducing fuel quantity and making the engine explosion, and at the same time, computers which control the clicker is in the role of supplying the string in the string in order to accelerate the change from high strings to low strings, and the string in the string through the upper passage of the corresponding string in the speed.0 vehicles seem to fall from the speed of the vehicle, the string of the vehicle is determined to have changed from the string in Incheon's internal pressure to the degree of rapid change in the string in the speed of the vehicle.On the other hand, it is determined to have changed from the string in the speed of the vehicle to the string of the vehicle to the degree of rapid change in the string and the change in the internal pressure of the vehicle to the string in Incheon's internal pressure.

0. Although the appraiser did not directly increase or decrease for about 8 days during the trial run, there was a change of speed, the appraiser's contact with the Plaintiff that the change of speed occurred as a result of this court's response, and on October 18, 2012, at least 7 times during the trial run on the instant vehicle, there was a change of speed.

In addition, the degree of the shock is not so small that the shock is not limited, but it was a "serious part".The 0th vehicle of this case is a new lane that has not been released for a long time, or a new lane that has not been changed due to mechanical problems, and if the program was operated after the rapid shock has occurred, the shock should be repeated from the same conditions. However, in light of the situation where the rapid shock has occurred intermittently, it is presumed that the cause of the shock is a sporadic malfunction that regulates the number of the sporads of the accelerators, rather than the devices of the speed change, in the judgment of the appraiser.

With regard to the effect of the speed change on the vehicle operation, first of all, there is a high possibility of having an issue, such as the influence, leakage, etc. of the electronic change or valve in the valve fl, and has an influence on the durability of the changeer, and the psychological and stress of the driver, and the sporadic symptoms have a greater impact on the vehicle operation.

The 0-speed shock is a symptoms showing delay of operation, pressure leakage, etc. when he/she voluntarily controls from the computer on the basis of each input signal at the level of increase or decrease between the first and sixth parts, and may have a possibility of intermittent impact on the transmission of the engine, and the symptoms of the engine from the vision of the engine are not affected separately (the possibility that the vision may occur is rare).

In most cases, it is difficult to determine the causes of 0 sporadic shock. Therefore, in most cases, it is an appropriate method to eliminate ordinarily the causes of exchanging the transmission apparatus. Meanwhile, in the case of symptoms, such as the instant vehicle, it is highly likely that the valves are inferior at a positive rate, and it cannot be concluded that 10% of the causes are removed if only the valves are exchanged. Therefore, the total replacement of the transmission machine is an effective and appropriate method.

0 In consideration of the fact that the instant vehicle is a new one, the replacement cost of the new one is a total of KRW 7.9 million (7.5 million for the same type of vehicle as the instant vehicle plus KRW 7.4 million for the new one). Moreover, the replacement of the changed one is sufficiently possible with the Defendant’s free guarantee repair.

2. On the argument that the contract is terminated - Judgment on the primary claim

A. Contents of the Civil Act

(1) Article 581(1) of the Civil Act provides that " even if an object of sale is designated as a kind of object, if there is any defect in such subsequent object, the provisions of the preceding Article shall apply mutatis mutandis." The main sentence of Article 580(1) of the Civil Act provides that "the provisions of Article 575(1) shall apply mutatis mutandis if there is any defect in the subject matter of sale," and Article 575(1) of the Civil Act provides that "if the subject matter of sale is the subject matter of superficies, servitude, right of lease on a deposit basis, right of pledge or right of retention and the buyer was unaware thereof, the buyer may rescind the contract only if it is impossible for the buyer to achieve the purpose of the contract.

In order for the plaintiff to claim the cancellation of a motor vehicle sales contract pursuant to the above provision, it shall be proved that the plaintiff cannot achieve the purpose of the contract due to defects in the motor vehicle in this case.

(2) Here, the phrase “it is impossible to achieve the purpose of the contract because of the defect in the object of sale” refers to cases where the defect in the object can not be easily and objectively repaired. This is because there is no particular obstacle to the achievement of the purpose of the contract in cases where the defect in the object can be simply repaired or repaired without any low cost. The degree of the defect in the object is obvious in light of the above provision.

(b) Characteristics of automobiles;

(1) Today, automobiles are complicated products with many machinery, equipment, and computer systems. In the future, automobile parts for diversity and convenience have been developed due to the continuous development of automobile engineering technology, and the market price of new products will continue to proceed. However, the development of automobile parts is highly likely to focus on improving performance and functions rather than safety. This is because market economy logic is actively applied to the automobile industry.

On the other hand, it is important to improve the performance and function as a general consumer who purchases automobiles, but rather, to secure the stability of automobiles, the highest-tech science and technology-fixing chain will put a priority on securing the stability of automobiles. This is because there is a defect or problem in the stability, which may cause a risk directly connected to the life and body of drivers of automobiles and their passengers. Accordingly, the manufacturer and seller also provides services to ensure the safety of customers by providing free guarantee repair for specific defects within a certain period of time or within the odometer range in connection with the sale of automobiles, or by providing a call for a specific type of vehicle due to a serious defect.

However, as seen earlier, it is difficult to conclude that there is a problem in the motor vehicle safety uniformly in all cases where a defect or defect of a motor vehicle occurs because a large number of parts are systematically combined in a motor vehicle today, and a defect or defect of a motor vehicle caused by such a defect is different from a full-scale motor vehicle. This is because there is a minor or minor defect that can be easily repaired only with a simple maintenance.

(2) If so, whether to recognize the cancellation of a contract by determining the existence of a certain degree of defect in today’s stability or in the event of a problem, there is a serious defect. If a serious defect or defect that may impede the driving and safety of a motor vehicle at least three times, occurs periodically, or makes the customer purchased the motor vehicle fall into the seat of the motor vehicle difficult to normally operate the motor vehicle due to the reasons such as a periodic occurrence, etc., it would be presumed that there is a serious defect.

Furthermore, in relation to the operation of a motor vehicle, such as the "motor vehicle stop phenomenon during driving" (see Seoul Central District Court Decision 2012Da87476, Jan. 9, 2013) or "motor vehicle stop phenomenon during driving due to the failure to supply an engine, etc.", it is reasonable to view that a motor vehicle's defect in the operation of a motor vehicle may hinder the driving and safety of the motor vehicle due to a defect in the motor vehicle, which may directly pose a serious danger to the driver (including the passenger)'s life and body, a defect in the motor vehicle that can directly affect the motor vehicle's safety, or a defect in the motor vehicle can not be properly repaired through the maintenance, etc. or where the same malfunction continues to occur even after many repairs are repaired, the purpose of the contract, which is the normal and safe operation of

C. In the instant case:

(1) As seen earlier, in the instant vehicle, at least 3 times the present vehicle had a change of speed prior to the present court’s appraisal, and the Defendant, whenever so, confirmed the program (a re-program) and a normal operation after the deletion of the experimental test value, and proposed to replace and provide the Oral wave (Automatic Change) itself, which is the fundamental cause of the change of speed in comparison with the reproduction of the same trouble in the present vehicle, and the appraiser also presented his opinion that the defect that occurred in the instant vehicle due to the replacement of Oral Change can be repaired.

(2) On the other hand, on the other hand, even if the appraiser's appraisal result results, it is presumed that the cause for the speed of the change occurred on the instant vehicle is a valve sporadic non-sporasive operational failure, which regulates the number of the changeable engine as a result of the changeative engine rather than the changeative engine, and it is not clearly revealed what accurate cause is. Therefore, it is difficult to say that the replacement of the changeative engine can prevent the recurrence of the instant vehicle by 100% in the future.

In addition, as seen earlier, changing shocks not only cause various problems in valves themselves, but also have various impacts on the physical aspects of vehicles, such as the durability of changing accelerators, body shock, engine transmission, etc., and as well as have significant impacts on the psychological stress aspects of drivers, sporadic symptoms, such as this case, have a significant impact on drivers. Furthermore, it cannot be ruled out at all, the possibility that the change shocks may occur even though there is no different effect from the engine’s operating symptoms or there is no possibility that it may occur a sudden phenomenon, and it cannot be said that there is no possibility that the vehicle Auds may stop during the vehicle operation. This may lead to a traffic accident that directly causes a serious danger to the life and body of drivers, etc.

On the other hand, today (in the case of our country, the number of car manufacturers and distributors per 2.74 people as of the end of 2011) have the duty to provide safe operation services so that they can operate automobiles with safe operation services within a certain period of time or distance after sale, not merely by vehicle sale, but by the duty to provide safe operation services so that they can operate automobiles. However, it is difficult to accept that compelling a driver to continue to operate automobiles on the ground that the external form problem was resolved on the ground that the external form problem was resolved, even though the trust in the automobile safety was destroyed due to the reason attributable to the manufacturer and seller, it is difficult to accept that the duty to ensure and maintain safe operation is practically excessive to customers.

Moreover, the instant vehicle began from the time of the release of the vehicle from the point of time to the point of time, and from the two months after the release of the vehicle, the intensity of the speed of the change was serious, and the vehicle operation was suspended until then. By that time, the odometer of the instant vehicle was limited to 1548 km. Therefore, even though psychological stress and change of the speed of the vehicle experienced by the driver in the process, it cannot be said that there is little apprehension as to whether the safety of the instant vehicle is secured and it is possible to continue to operate the vehicle safely, and this is also difficult to ignore these circumstances.

(3) Ultimately, it should be deemed that the instant vehicle has a serious defect that is difficult to repair, and the purpose of the instant contract cannot be sufficiently achieved, such as the normal and safe operation of the vehicle.

Therefore, the Plaintiff’s primary claim seeking the return of the purchase price of the vehicle already paid is accepted on the premise of the cancellation of the contract. Within the scope of the Plaintiff’s claim, the Defendant is ordered to return the vehicle with interest accrued from the day following the day the Defendant received the vehicle

However, the Plaintiff asserts that 6% per annum, a commercial interest rate, should be applied to the fixed-term payment. However, in this case where the Plaintiff, not a merchant, has no materials supporting the purchase of the instant vehicle in order to conduct business activities as stipulated in Article 46 of the Commercial Act, and the Defendant, a seller, cannot apply the commercial interest rate to the return payment solely on the ground that the Defendant, a seller, is a merchant. 5% per annum is applied under the Civil Act.

(4) The plaintiff's duty to return the vehicle and the defendant's duty to return the goods are placed in the relationship of simultaneous performance. Accordingly, the defendant's assertion on this part is accepted and the decision of simultaneous performance is delivered in the disposition.

3. As to the assertion of delivery of substitute vehicles - The phrase “family” determination as to the conjunctive claim

Under the following, in preparation for the case where the termination of the contract is not recognized because there is no particular obstacle to achieving the purpose of the contract despite the defects existing in the instant vehicle, it will be examined whether the delivery of a new motor vehicle without the plaintiff's request is recognized.

A. Contents of the Civil Act provisions

(1) Article 581(1) of the Civil Act provides that “ Even if an object of sale is designated as a kind of object, if there is any defect in the specified object thereafter, the provisions of the preceding Article shall apply mutatis mutandis.” Article 581(2) provides that “In the case of the preceding paragraph, the buyer may demand a defective object without rescinding the contract or claiming for damages.” In addition, Articles 580 and 575(1) of the Civil Act provide that “The buyer may demand a defective object

(2) In light of the provisions of Articles 581(1), 580, and 575(1) of the Civil Act, in a case where the purpose of the contract cannot be achieved due to the defect existing in the object of sale and purchase, the buyer may request a refund of the price for the rescission of the contract in a case where the purpose of the contract cannot be achieved due to the defect in the object of sale and purchase. On the other hand, in a case where there is no particular obstacle to the achievement of the purpose of the contract despite the defect, the buyer may receive compensation for the difference in the value caused by the defect and may not cancel the contract. However, in a case where the object of

In addition to recognizing the right to only compensate for damages caused by defects while using the goods returned to the state or already paid, Article 581(2) separately granted the right to request the buyer to deliver new goods that are not defective to the seller so that the buyer can fully achieve the purpose of the contract originally agreed upon. The granting the buyer the right to claim the payment of the complete goods in lieu of the cancellation of the contract or the claim for damages under Article 581(2) of the Civil Act is the right to return the defective goods to the road where the defect occurred due to the seller’s cause attributable to the seller and re-transfer other goods that are not defective to the buyer. In addition, according to the text of the above provision, it is clear that it is a right recognized without examining whether the purpose of the contract can be achieved due to defects.

(3) However, in light of the fact that a seller's warranty liability is recognized so that a buyer can recover again within the scope of a constructive value, such as additional damages incurred by a buyer due to a decline in exchange value, etc., due to defects that exist in the goods that exist after the buyer and the seller exchange for the goods with different prices, the seller may not take into account the seriousness of defects or the disadvantage of the seller that may arise due to the delivery of a new goods without any defects, but may cause an excessive harsh result to the seller if he/she permits the claim for the payment of the complete goods. In such a case, the exercise of the right to claim for the payment of the complete goods must be restricted. If the disadvantage of the seller increases excessively due to the delivery of the defective new goods, the balance between "provisional transactional relationship", which is the most important factor of the sale, is broken.

Therefore, it is reasonable to view that the seller may refuse the delivery of a new product without any defect in the case where it is deemed that there is no particular obstacle in achieving the purpose of the contract because of the defect"in the object, or in the case where it is deemed that the seller's disadvantage is too heavy and harsh due to the cost of procurement of the same product, the burden of additional transaction expense, etc. compared with the claim for cancellation

B. Summary of the parties' assertion

(1) In the instant case, the Plaintiff demanded the provision of a new motor vehicle without any defect pursuant to Article 581(2) of the Civil Act.

Here, the provision of alternative products to be sought by the Plaintiff is equal to that of the instant vehicle already sold, but the Defendant, the seller, provides another vehicle without any defect, as a non-cost, without claiming any separate cost to the Plaintiff, the buyer.

(2) On the other hand, in light of the above legal principles, the Defendant asserted that, in the case of the product manufactured at the time of loading or registering the vehicle, the vehicle price rapidly drops along with the vehicle, the provision of the substitute vehicle could not bring about an excessive disadvantage to the seller. In detail, this argument was examined as follows. On the other hand, the Defendant asserted that 7.9 million won was incurred at the cost of repair of the vehicle in this case. On the other hand, when calculating the cost of supplying the defective new vehicle, the Defendant claimed that the new vehicle price of KRW 146.3 million (or KRW 12,400,000,000 (or KRW 84,80,000,000) of the vehicle similar to the odometer of the vehicle in this case was calculated at the time of loading or registering the vehicle in this case, the amount calculated by subtracting the vehicle price of KRW 84,00 through KRW 88,00,00,000 from the new vehicle in this case, the Defendant suffered excessive disadvantage compared to the above cost of repair.

On the other hand, the defendant's above assertion is clear that it is necessary to restrict the exercise of the right to claim payment of complete goods recognized in Article 581 (2) of the Civil Act. Accordingly, whether there is a minor defect in the vehicle in this case or the provision of substitute vehicles causes a significant disadvantage to the defendant should be proved by the defendant.

C. Whether there is a minor defect

First, as seen earlier, the defect can be easily repaired, and if there are no excessive costs, the buyer cannot recognize the right to claim for the payment of the complete goods. In the case of a small defect, if the right to claim for the payment of the unlimited goods is recognized, the seller cannot bear unlimited loss, and this is also against the fundamental principle of the defect liability of pinine.

However, according to the appraiser's appraisal result, in order to repair the 'deficial shock' defect in the vehicle of this case, it should be replaced with a complete new defect, and it is recognized that the replacement cost is required to be 7.9 million won. Therefore, this cannot be evaluated as a minor defect that can be easily repaired only by simple maintenance.

However, in this case, if there is excessive disadvantage to the seller due to the delivery of the defective new goods, the exercise of the right to claim for full water may be restricted, and this is examined below.

(d) Criteria for calculating ‘disadvantageous treatment' suffered by a seller;

(1) First, in the event of a defect in the object of sale, the following are considered in light of the degree of damage suffered by the seller in the event of the cancellation of the contract, the claim for damages, and the claim for full payment of the goods.

In other words, if a contract cannot be rescinded despite a defect, the seller is sufficient to bear only a loss equivalent to the repair cost corresponding to the defect repair, while when the contract is rescinded, the seller suffers a loss equivalent to the amount to be returned by returning the sales price received in lieu of returning the delivered goods to the buyer (the amount of compensation for damage caused by the cancellation shall not be added separately; hereinafter the same shall apply) or from the price of the new goods which are not defective less the exchange value of the goods which are returned from the price

However, even in cases where a new product is delivered upon the exercise of a right to claim the payment of the complete product, as such, the seller has suffered damages equivalent to the remainder of the value of the defective product returned at the price of the defective product without any defect, and in detail, the seller suffers damages equivalent to the cost of repair in accordance with a claim for damages less specific.

(2) How is to select the comparative assessment of disadvantages suffered by the buyer at the time of exercising the right to claim the payment of complete goods. As seen earlier, our Civil Act is understood as an amount equivalent to the cost of repairing less disadvantages suffered by the seller as a warranty liability in the event of defects in the subject matter of sale and purchase, and as a result, to the extent of lowering the exchange value of the defective goods.

Meanwhile, the comparative assessment of the degree of disadvantage suffered by the seller in the process of recognizing the right to claim for the payment of the complete product should be reasonably selected within the scope of the buyer's choice recognized in Article 581 of the Civil Act. In this case, the right to claim for the payment of the complete product is recognized as a kind of right in lieu of the cancellation of the contract or the claim for damages, and the buyer has granted the option to exercise the right to claim the complete payment in lieu of the cancellation of the contract or the claim for damages, and it does not grant a third party's independent right that is distinguished from the cancellation of the contract or the claim for damages. In addition, Article 581 (2) of the Civil Act recognizes the exercise of the right to claim for the payment of the complete product instead of the claim for damages with low disadvantage, even though it recognizes the exercise of the right to claim for the payment of the complete product instead of the claim for damages with low disadvantage. Accordingly, if there is a serious defect in the goods sold by the seller, it can only claim the cancellation of the contract and there is a big difference between the seller's demand for the delivery of the full payment on behalf.

Therefore, when the buyer exercises the right to claim a complete payment, it is not to uniformly calculate the degree of disadvantage suffered by the seller, but to consider where the fundamental cause of the exercise of the right to claim a complete payment is where the contract can be cancelled and where damages can be claimed. In the event of exercising the right to claim a complete payment instead of the former, it is necessary to examine whether the disadvantage suffered by the seller in accordance with the termination of the contract is too heavy and harsh. In other words, when the buyer exercises the right to claim a complete payment instead of the former, the extent of disadvantage of the seller should be calculated in accordance with the cost of repair. In other words, when calculating the disadvantage of the seller, the seller can freely exercise the right to claim a complete payment without whether the contract exists or not the purpose of the contract can be achieved, and the seller can exercise the right to claim a complete payment in lieu of the termination of the contract or the claim for damages, it is necessary to first consider whether there is a cause for cancellation of the contract as above, and to distinguish the cases where the right to claim a complete payment is exercised in lieu of the damages.

On the contrary, the decision that "in the event that the buyer exercises the right to claim the payment of the full goods on behalf of the buyer, even though the purpose of the contract can not be achieved and the buyer can exercise the right to claim the payment of the full goods on behalf of the buyer, the degree of disadvantage that the seller will incur is calculated in comparison with the amount equivalent to the repair cost, and thus, cannot actually allow the exercise of the right to claim the payment of the full goods recognized in lieu of the cancellation of the contract. Therefore, it is interpreted that the legislative intent of Article 581 (2) of the Civil Act is neglected. On the contrary hand, even though the buyer can claim only the damages equivalent to the repair cost because there is no particular obstacle to the achievement of the purpose of the contract, if the buyer exercises the right to claim the payment of the full goods on behalf of the buyer, the degree of disadvantage that the seller would incur is not much likely to suffer when the contract is terminated." Thus, this is in fact demanding the seller to accept the disadvantage equivalent to the cancellation of the contract, and thus, it goes against the principle of equity.

(3) We would like to examine how to calculate the ‘the degree of disadvantage the seller will suffer' in each case.

(A) When there exists a reason to cancel a contract, since the buyer exercises the right to claim the full payment instead of the termination of the contract, the degree of disadvantage suffered by the seller is equivalent to the amount of damage suffered by the seller due to the termination of the contract. In this case, in special circumstances where the seller suffers any unexpected damage to the seller due to the increase in the cost of procurement, additional transaction cost burden, etc., the exercise of the right to claim the full payment should be restricted and only the termination of the contract should be recognized. Likewise, in the absence of a reason to cancel a contract, the buyer exercises the right to claim the full payment instead of the claim for damages equivalent to the cost of repairing the defect (repair). Therefore, the degree of disadvantage suffered by the seller is equivalent to the amount of damage suffered by the seller due to the claim for damages, and if the seller suffers any excessive or excessive disadvantage compared to the buyer's claim for damages due to the foregoing reasons, including the difference in exchange value, the seller bears excessive damage, and thus, it also needs to be restricted from exercising

If so, how to calculate the degree of disadvantage that the seller will suffer in the above case shall be returned to a measurable and tactical value. It shall be reviewed by changing the clause.

(B) First, we examine the examples of Germany, which can be referred to in the resolution of this case.

Article 439 of the German Civil Code provides for the following (see, e.g., preparatory documents submitted by the defendant on August 9, 2012). In other words, the buyer may demand the repair of defects or the payment of complete goods as a subsequent completion.

(1) The seller shall pay the costs of subsequent completion, in particular, transportation costs, transportation costs, transportation costs, personnel costs, or material costs (Article 275(2)). A seller may refuse a request for subsequent completion chosen by the buyer, irrespective of Article 275(2) and (3) where the seller causes excessive disadvantages to the seller. In such cases, the seller was particularly defective, and the court also has also considered the German Supreme Court precedents regarding Article 633(2)3 of the former Civil Act as well as German Supreme Court precedents regarding Article 633(2)3 of the former Civil Act.

(C) On the other hand, when the degree of disadvantage suffered by the seller is returned to a tactical and measuring value, the profit that the seller is exempted or acquired should also be taken into account as follows:

Today, automobile manufacturers and distributors provide various services to ensure the safety of customers through free guarantee, repair, or call implementation. It is clear that this is being conducted in connection with the sale of automobiles with the purpose of securing the customer’s trust to increase the sales performance of automobiles and increase the sales profit. Therefore, in a case where a vehicle manufacturer and seller recognizes a defect of a vehicle and re-delivery a new vehicle to a customer as part of a Ri protocol on a special type of vehicle, it cannot disregard the intangible future value or its economic profit that may cause an increase in the promotion effect and sales performance by securing the customer’s trust. Moreover, it is not possible to accurately estimate the economic profit of the seller to be acquired as such ripple effect in the current point of time.

In addition, the replacement of the automatic transmission machine itself in order to repair defects caused by a cause attributable to the seller, such as the instant vehicle, causes losses to the Plaintiff in addition to the odometer by additional value decline due to the replacement of parts. In the event that a new vehicle is delivered, the Defendant is exempted from the additional value decline, and the Defendant may offset the Defendant’s expenses to a certain extent.

(D) In light of the above circumstances, this Court shall present the following standards for response. First, in the event of exercising the right to claim the payment of complete water instead of the termination of the contract, it shall be deemed that “if the cost required for the supply of defective new goods requires at least 50% of the amount of damage the seller may incur due to the termination of the contract, the seller may not claim the supply of defective new goods.”

Next, in the event of exercising the right to claim payment in lieu of the claim for damages, it is reasonable to view that the degree of disadvantage that the seller will incur is “if the cost of supplying the defective goods is required to exceed 50% of the aggregate of the cost of repairing the defective goods supplied and the amount of damages equivalent to the additional value decline due to the replacement of parts, it is not possible to claim the supply of the defective new goods.”

E. In the instant case:

(1) This part of the family judgment is developed on the premise that the defect of the 'deficial shock' existing in the instant vehicle is serious, but it can be sufficiently achieved the purpose of the contract due to a change of speed, so there is no reason for cancellation of the contract.

Therefore, the Plaintiff’s right to claim for the payment of the complete water in this case ought to be deemed to be the case where the seller exercises the right to claim for damages equivalent to the repair cost, and at least 50% of the total amount of the repair cost of the instant vehicle and the amount of additional value decline following the replacement of a motor vehicle with no defect, if the costs incurred in supplying a new motor vehicle with no defect exceed 50%, the Plaintiff may not claim for the supply of a new motor vehicle with no defect.

(2) In the instant case, when the Plaintiff claims damages, the costs to be borne by the Defendant are 7.9 million won for repair of defects of the instant vehicle and the additional value decline due to replacement of a transmission machine (in light of the above speed change replacement cost, it seems that this part of the damage is not larger than the value decline according to the odometer as seen below). On the contrary, even if the Defendant calculated to the minimum extent expenses incurred in supplying a new vehicle without defects, it is sufficient to say that the difference in the exchange value is 36.4 million won, which is the difference in the exchange value (the amount calculated by subtracting the average value of 86.5 million won from the vehicle price of the instant vehicle sold to the Plaintiff) and the new vehicle imported from Germany, such as the cost of procurement and registration of a new vehicle imported from Germany, and at least 1.5 times more than the repair cost.

Therefore, in this case where there is no reason to cancel the contract, the Plaintiff’s exercise of the right to claim the full payment of the goods in lieu of the claim for damages and the Plaintiff’s exercise of the right to claim the full payment of the goods ought to restrict the exercise of the right to claim the full payment of goods by giving excessive and harsh disadvantages to the seller. The Plaintiff is only entitled to claim the amount of damages equivalent to the additional value decline due to the replacement of the

The plaintiff's preliminary claim is rejected. The plaintiff's preliminary claim is dismissed.

Judges Seo Young-young

(1) The value of the subject matter of sale, the meaning of the defect, and the disadvantage of the purchaser;

whether the performance can be fulfilled in any other way without putting in B. It shall be taken into account.

In such a case, the buyer's right to demand the completion of any other method is limited. In such a case, the buyer's right shall be limited

The seller may refuse to complete the other form in accordance with the provisions of the first sentence (Paragraph 3).

In addition, the German court may limit the exercise of the right to claim full water payment in accordance with paragraph 3 of the above provision.

as a standard for calculating ‘in cases of excessive disadvantages to the seller', ‘in cases of excessive disadvantages'.

the supply of a new product (in the case of this case) with no defect, the cost of the supply of such product has already been

20 per cent or 30 per cent of the cost of repairing defective goods

The so-called internal cost comparison theory, 120% to 130%, called "no request for the supply of recommendations", or

However, according to reference materials submitted by the defendant, the German legislators of Germany have developed the rule above.

See Article 633(2)(3) of the former German Civil Code at the time of enactment.

A person shall be appointed.