In a case where Party A departed from the Republic of Korea after purchasing a round-down air ticket from Party B to Party B, but failed to use the air code for the Paris-Seoul Section due to excess sales of the seat of Party B’s aircraft, and Party A refused to return to Korea using another air code provided by Party B, and Party B paid Party A’s unused air ticket refund and compensation, the case holding that Party B’s additional liability for damages cannot be recognized.

In a case where Party A left the Republic of Korea after purchasing the right to shut back air from Party B to Party B, but failed to use the air segment in the Paris-Seoul section to sell the aircraft seated in Party B, and Party B refused to return to Korea by using another air segment provided by Party B and paid Party B the refund of the right to use air tickets and the compensation therefor, the case holding that Party B’s assertion that Party B should compensate Party A for damages incurred by Party A’s non-use of the right to use air tickets in accordance with the European Union Regulations [Reeg (EC) No. 261/204], on the grounds that Party B cannot be deemed to have erred by the current law in returning the right to use air tickets to Party A and paid the compensation for damages incurred by Party A’s non-use of the right to use air tickets for health and certain reasons.

Articles 750 and 751 of the Civil Act

Plaintiff (Attorney Cho Ho-ho, Counsel for defendant-appellant)

Efranc (Attorney Choi Jong-sung, Counsel for the defendant-appellant)

Seoul Central District Court Decision 2011Gaso2336515 Decided May 10, 2012

November 7, 2012

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 7,240,000 won with 6% interest per annum from September 18, 2011 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date (the plaintiff reduced the plaintiff's claim in the trial).

1. Facts of recognition;

A. On June 24, 201, the Plaintiff paid KRW 4,486,300 (air fares of KRW 3,860,00 + tax of KRW 475,400 + travel agency fee of KRW 150,90 +) through a travel company, a golf club and a MM, and purchased a right to return from the Defendant (the Plaintiff appears to have purchased an airline ticket on its website, and the Plaintiff was issued an E-Tet (e-Tet) on the same day).

○ 1 on September 10, 201) 09:25 Seoul (In Incheon Airport) and 14:20 on the same day, Efranc (AF) 267 letter 14:20 on the same day.

○ From Paris on September 17, 201, 211 to Paris (Save Airport) to 14:50 Seoul (SaF) on the following day, e.g., Efranc (AF) 262 [hereinafter referred to as “instant flights”). The actual operation of the flights by Korea Aviation and Joint Navigation (KE) is 902 letter 14:50 Seoul on the following day.

B. The plaintiff was unable to use the flight of this case due to the defendant's excessive sales of the seat of the aircraft, and the reasons are as follows.

○ The Defendant, from the Joint Navigation Operator’s Aviation, assigned 2 mix 2, 20 mar 2, 20 mar 20, and 48 mar 48 mar mar 2, mar 2, mar 21, and mar 50 mar mar 1 and mar 2.

○ From among 21 persons who purchased the instant aviation tickets, 20 persons other than the Plaintiff, among the 21 persons who purchased the instant aviation tickets, excluding the Plaintiff, have completed the boarding speed between September 17, 201 and 19:03, and the Plaintiff lasted the boarding speed of 19:14 on the same day.

On September 13, 2011 and 14th of the same month, three persons, among the above 21 persons, who had the highest right, purchased aviation tickets, and they were on board between September 17, 201 and 17:57 and 18:34.

Of the seats assigned in 902 U.S.A. to ○ Joint Navigation, business strings had a strings and 2 U.S. A. A. B. A. B. A. B. A. B. A. B. A. B. A. B. A. B. B. a. B. B., the Plaintiff refused the Plaintiff’s request for refund of the difference and the use of A. B. A. B. A. B

C. Accordingly, the defendant, as a substitute flight, proposed a method of using Part Efran 264 directly departing from Seoul on the following day after being provided with a method of going to go to the air code going to Seoul by using Part 278 as an Efranc Note 2) 278.

D. However, the Plaintiff refused each of the above proposals for elderly and individual reasons, and demanded the Defendant to do so two hours later (23:00) by Korean Civil Aviation No. 904, Korean Civil Aviation No. 1904 (23:00). However, the Defendant refused it and purchased the above flight No. 5,214.85 (2.360,000 won), and returned to the Republic of Korea using the above flight No. 195 (23:00 won).

E. Before boarding the above flight, the Defendant issued a written confirmation of refusal to board the Plaintiff, and paid the Plaintiff the “The European Union Regulation (EC) that stipulates that the passenger who refused to board should immediately pay compensation to the passenger who refused to board [No 261/204] to compensate for 600 U.S. dollars (Korean Won KRW 900,000).”

F. The Defendant’s unused amount of refund of the airline ticket due to the Plaintiff’s non-use of the airline ticket of this case against the Plaintiff is KRW 2,221,100 (charges 1,930,000 + the unused amount of tax KRW 291,100). The Defendant later paid the above 600 kys and the refund money to the Plaintiff.

G. The Defendant’s general transportation clause provides that “When a passenger refuses to board due to excess reservations, an airline shall pay compensation in accordance with the current law if the airline is unable to provide its seat to the passenger due to excess reservations, even if it holds the confirmed reservation and valid airline tickets, and satisfies certain time and conditions” (Article 9(3)).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1-6, Eul evidence Nos. 3, 4, 6, 8-12, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

1) Excessive sales, which are not an excess reservation: The plaintiff already purchased airline tickets by paying a fee three months prior to the date of the trip, and even if the time when the plaintiff presented an airline ticket to the defendant and demanded boarding tickets was not late, the defendant rejected boarding. The defendant did not receive an excess reservation in expectation of the possibility of partial revocation of airline tickets and sold airline tickets in excess of the actual number of seats. This is an illegal or unjust alcoholic beverage, which is the defendant's sales of the plaintiff's airline tickets at a price below the plaintiff's low price with a plan to induce the plaintiff from the beginning to a large number of flights.

2) There was no prior contact: The Defendant did not communicate with the Plaintiff for more than three months after the Plaintiff’s right of birth, and was hiding the fact of excessive departure until the Plaintiff appeared in the airport boarding cater for return to Korea. However, the Plaintiff refused to board the aircraft.

3) Violation of the duty to explain terms and conditions: The defendant did not explain the terms and conditions to the effect that excess sales are included in the concept of excess reservation.

4) Damages amount: The Plaintiff returned inevitably to the Republic of Korea on the grounds of health and specified reasons, and the above air ticket fee (5,214.85 U.S., K., K.T. 8.360, U.S.) is losses in proximate causal relation with the rejection of boarding due to the Defendant’s excessive right to launch. The Plaintiff was at least two million won of consolation money on the ground that the Plaintiff was boomed at the Paris airport where communication was not smooth, and was suffering from a man-discriminatory discriminatory treatment in some respect. Accordingly, the Defendant is obliged to compensate the Plaintiff for the amount of consolation money of at least 2.2 million won calculated by subtracting the above total damages amount of KRW 10,360,000 and the Defendant’s compensation amount of KRW 90,000,000,000,000 from the total damages amount of KRW 1,03.66.

B. Defendant

1) Excessive reservations and excessive sales of airline tickets are the same concept, and the defendant's general terms and conditions cover the sale of airline tickets, and the excess reservations by an airline do not constitute an unlawful practice permitted as a general business act of an airline to maximize the use of seats by obtaining a certain level of reservations due to the characteristics of the air transport business, and where a problem arises, alternative flights, provision of accommodation, etc. are reasonable solutions.

2) The Defendant’s assertion that the Plaintiff intentionally sold the Plaintiff’s airline tickets to a third party by an unlawful or unjust means is without any ground that the Plaintiff intentionally treated the Plaintiff as a race discrimination.

3) Until the date of the trip, many passengers can have empty seats by cancelling the airline tickets and, if so scheduled, the seat may be offered to the maximum extent possible through the adjustment of the seats or substitutions, and in most cases, it is not possible to notify in advance of the refusal to board because it can be known that any passenger goes to an airport on the day of the trip.

4) In general, the terms and conditions of carriage are not directly explained to passengers.

5) The above provision of the European Union shall apply to passengers of aircraft departing from an airport located within the territory of a Member State of the European Union, and the criteria for compensation under the above provision of the European Union shall be more favorable to the plaintiff than the criteria for the settlement of consumer disputes under the above provision of the European Union. The defendant paid compensation for 600 U.S. dollars to the plaintiff, and refunded the fare of 2,221,100 U.S. to the plaintiff, thereby performing all obligations arising from the rejection of boarding. Even under the Civil Code, the damages asserted by the plaintiff are attributable to the plaintiff's unilateral and emotional boarding activity of another airline, and there

3. Regulations related to monitoring;

(a) Member States of the European Union: Note 4); European Union Regulations;

Article 3 (Scope of Application)

1.This provision shall apply to the following passengers:

(a) Passengers (hereinafter referred to as “persons”) coming from an airport located in the territory of a Member to which this Treaty applies.

Article 4 (Refusal of Boarding)

1. If the airline is anticipated to refuse boarding on the flight, it shall find out in advance the person who has received benefits provided by the airline under the conditions agreed between the passenger and the airline and who has waived his reservation. The person who has received the assistance in accordance with Article 8 shall receive the assistance and the assistance shall be provided in addition to the benefits referred to in this item.

2. If the remaining reservation passengers are not sufficient number of assistants to leave the aircraft, the airline may refuse boarding regardless of their will.

3. If passengers refuse to board regardless of their will, the airline shall promptly compensate the passengers pursuant to Article 7 and shall assist them in accordance with Articles 8 and 9.

Article 7 (Right to Receive Compensation)

1.In reference to this provision, passengers shall be compensated as follows:

(a) 250 km on all flights over 1,500 km

(b) 400 km for all other flights between 1,500 km and 3,500 km or more of all European Union;

(c) 600 ocs for all flights not belonging to paragraphs (a) and (b).

When determining the distance, the criteria should be the final destination to be delayed than the time scheduled for passengers due to refusal to board or cancellation of aircraft.

2.Where the passengers have received re-ordinated the route by alternative air services in accordance with Article 8 to the final destination, if the arrival time does not exceed the first scheduled scheduled arrival time of the air services, the airline may reduce the compensation set out in paragraph 1 by 50 per cent if it does not exceed the time for the first scheduled arrival of the air services:

(a) 2 hours for all flights over 1,500 km;

(b) 3 hours for all different flights between 1,500 km and 3,500 km in all European Union over 1,500 km;

(c) 4 hours for all flights not belonging to paragraphs (a) and (b).

3. The compensation referred to in paragraph 1 shall be paid in cash, bank account transfers, bank checks, or other services where the passengers have consented in writing.

Article 8 (Right to Refund or Re-Adjustment of Course)

1. In reference to this provision, the following persons shall be selected:

(a) With respect to all costs of the airline tickets purchased as the means specified in paragraph 3 of Article 7, where it is difficult for passengers to contribute to the achievement of their original objective in connection with the passenger’s initial travel plan, refund within seven days for any portion already used along with return to the first place of departure;

(b) re-ordinate the best opportunity and on the terms of transport similar to the final destination;

(c) re-ordinate the route to ensure that the remaining seats are to be brought to the final destination on any other day on condition of similar transportation, depending on the convenience of passengers;

2. (Omission, Omission, Travel Related to Sticking)

3. When a number of airports exist in one city or one area so that the airline provides flights to a alternative airport, not a one for which passengers have promised, the airline shall bear the expenses of such alternative airport or other vacant ports in the vicinity in which passengers have agreed to do so;

Article 9 (Rights to be Protected)

1.In reference to this provision, passengers shall be free of charge provided:

(a)reasonable meals and beverages with respect to waiting time;

(b)a hotel where more than a day of stay is required or where more stay than the stay intended to be of a passenger is required;

(c) Transport between an airport and a accommodation (a hotel or any other place)

2. In addition, passengers should be provided with the e-mail services at no charge twice.

3. In the application of this provision, the airline shall pay special attention to the limited passengers and their accompanying passengers as well as the children traveling alone.

(b) Korea: Criteria for the settlement of consumer disputes, No. 2010-1, announced by the Fair Trade Commission.

본문내 포함된 표 피해 유형 보상 기준 비고 사업자의 고의, 과실로 인한 운송의 불이행(확약된 항공편의 취소, 확약된 예약의 취소, OVERBOOKING, NO-RECORD). 단 기상상태, 공항사정, 항공기 접속관계, 안전운항을 위한 예견하지 못한 정비 등 불가항력적인 사유로 인한 경우는 제외 -체재 필요 시 적정 숙식비 등 경비 부담 -목적지 도착 기준 ① 대체편이 제공된 경우 ？ -각 항공사에서 정하고 있는 탑승수속 마감시간 이후 도착자는 제외 -운항시간 4시간 이내 ？ -보상금액 기준은 최고한도임 · 4시간 이내 대체편 제공 시 -USD 100 배상 -운항시간 4시간을 운항거리 3,500㎞와 동일하게 적용 · 4시간 초과 대체편 제공 시 -USD 200 배상 ？ -운항시간 4시간 초과 ？ ？ · 4시간 이내 대체편 제공 시 -USD 200 배상 ？ · 4시간 초과 대체편 제공 시 -USD 400 배상 ？ ② 대체편을 제공하지 못한 경우 -불이행된 해당 구간 운임환급 및 USD 400 배상 ？ ③ 대체편 제공을 여객이 거부한 경우 -불이행된 해당 구간 운임 환급 및 ①의 규정에 준하여 최초 대체편 제공 가능 시기를 산정하여 배상 ？

4. Determination

A. Determination as to the plaintiff's assertion that excessive sales of airline tickets are not excessive sales, but excess sales of airline tickets by the defendant is illegal and unjust.

First of all, the defendant's assertion that he had plans to induce the plaintiff from the initial point of view as illegal and unfair aviation, and that he sold the plaintiff's airline tickets at a low price to a third party who wanting to depart rapidly from the departure point of time due to the lack of evidence to acknowledge it, and that the defendant sold the plaintiff's airline tickets in excess of 1, as seen above, it cannot be deemed that the defendant unfairly exceeded the number of seats. The reason why the plaintiff refused to board the flight of this case is because the plaintiff was the most late boarding speed.

As seen earlier, the Defendant’s general transportation clause provides that “If an airline is unable to provide its seat to passengers due to an excess reservation of scheduled aviation flights, the airline shall pay compensation in accordance with the current law.” Under the above European Union provision, if the airline anticipates refusal on board flights under the conditions agreed between the passenger and the airline and the airline, it should first find out the provider who has given the benefit provided by the airline and has waived its reservation. If there are sufficient number of assistants to leave the aircraft, the airline may refuse boarding regardless of its passengers’ will.” This is premised on sale of scheduled airline tickets, i.e., provision premised on sale of scheduled airline tickets, and if it appears that there is no need to recognize that there is an excess reservation of scheduled air fares even after such excess reservation of scheduled air transportation services, the airline’s agreement should be cancelled, in light of the characteristics of the air transport business.”

The plaintiff asserts that since the defendant did not explain the general terms and conditions, it cannot be incorporated into the terms and conditions of the contract. However, the important contents subject to the duty to explain refer to the matters that may directly affect the customer in determining whether to conclude the contract or the price thereof in light of social norms (see, e.g., Supreme Court Order 2007Ma1328, Dec. 16, 2008). The above terms and conditions are generally acceptable practices and cannot be viewed as damp provisions, and they do not include "compensation in accordance with the current law" in the above terms and conditions, and do not include "compensation in accordance with the current law", and it does not include the defendant's exemption from liability. If the plaintiff knew with the explanation, it does not seem that the plaintiff would not have concluded the aviation ticket purchase contract (the plaintiff appears to have purchased the airline ticket on the website). Thus, it can be said that the defendant's failure to explain it is incorporated into the terms and conditions of the contract.

B. Determination of the governing law applicable to the instant case

According to the above terms and conditions, if an airline is unable to provide its seat to passengers due to an excessive reservation of the scheduled flights, the airline shall pay compensation in accordance with the current law. Thus, the defendant does not set the applicable law.

Therefore, the relevant provisions of private international law are as follows.

Article 26 (Initial Connection at Time of Connection of Applicable Law)

(1) If parties fail to choose the applicable law, the contract shall be governed by the law of the country most closely related to the contract.

(2) Where a party shall implement any of the following implementation under a contract, the law of the country where his/her habitual residence is located (where the party is a corporation or organization, the law of the country where his/her principal office is located) shall be presumed to be the most closely related thereto as at the time of concluding the contract: Provided, That where the contract has been concluded as an occupation or business activity of the party, the law of the country where the place of

1. In cases of a transfer contract, the transferor's performance;

2. Execution of a contract for use of goods or rights by the party.

3. Performance of services, in cases of delegation, contract, or other similar contract for services;

In full view of the provisions of Article 26(1) and (2) of the Private International Act, in the case of an airline ticket purchase contract, it is reasonable to deem that the law of the country in which the airport from which the aircraft departs is the most closely related to the airline ticket purchase contract. Thus, in the case of this case, the law of the country in which the air ticket of this case is located, i.e., the law of the country in which the air ticket of this case is located, and that of the European Union provision, the law of the country in which the air ticket of this case is located

On the other hand, the Plaintiff asserts that Article 27 of the Private International Act does not deprive the Plaintiff of the protection under the laws of the Republic of Korea to the beneficiary of the Plaintiff’s habitual residence pursuant to the consumer contract provision. However, as in the interpretation of the Private International Act, Article 27 of the Rome Convention is interpreted to exclude the application of Article 27 in the case of a contract in which the service is exclusively provided outside the contract of carriage and the consumer’s habitual residence. Therefore, the Plaintiff’s above assertion

C. Sub-decision

The U.S. Supreme Court also held that the aviation industry practice of the aviation industry not only the Defendant airline but also the global airline seems to have been established for a long time. The U.S. Supreme Court also held that “The general aviation industry practice designed to make each aviation take place with a minimum amount of public space (e.g., the each each f.m., the c.m., the ec., the c.m., the 10thm., the ec.m., the ec.c., the ec.m., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the ec.s., the passenger’s boarding caused by such aviation is the method of resolving the dispute through the laws applicable to its general transportation clause.

However, as in the case of this case, when a traveler purchased a round-down air ticket from Korea to a foreign country and tried to return to Korea as of the last day of the year, and the seated in the local airport was salved and could not get on board because of being salved, the airline should have prepared a reasonable alternative means with the maximum gender, and even in the case of the last day of the passenger, the airline should be exempted from its responsibility to pay only compensation according to the terms and conditions, and it is not desirable for the airline to take the responsibility to safely provide transportation services to the consumer who purchased its air ticket to the final destination. In this respect, the recognition transition for the protection of the consumer on the side of the airline is required first 1).

On the other hand, as the long-term practice of the aviation industry, aviation industry increases flexibility in the whole reservation system of an airline and reduces the overall costs, thereby benefiting passengers, so it is not unreasonable as a passenger to collect alternative means or compensation, but is also obligated to actively accept alternative means within the reasonable scope provided by the airline side.

Ultimately, as seen above, it cannot be deemed that there was any error under the current law that the Defendant paid the Plaintiff a refund of the air ticket fee in the Paris-Seoul section and the compensation for 600 percentage oil to the Plaintiff pursuant to the provisions of Articles 7(2)(c) and 8 of the above European Union Regulations, and in addition, there is no reason to believe that the Plaintiff’s assertion that the Plaintiff should compensate the Plaintiff for the damages caused by the refusal to board the air ticket (5,214.85 percentage oil) and the mental damage inevitably caused by the Plaintiff’s use of another air ticket for health and specified reasons.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judge Lee Jin-jin (Presiding Judge)

Note 1) The local time (LOcal Trie) is equal to or less than the same.

2) The plaintiff asserted that the flight was starting after 6 hours and 30 minutes of the flight of this case, and that the defendant was starting after 2 hours and 35 minutes of the flight of this case.

Note 3) A receipt in the form of electronic document, which can substitute for the same amount when the defendant's sales office is converted into local currency and refunded or when the defendant purchased the defendant's airline tickets.

Note 4) REGLATRION (EC) No. 261/2004 OF THE EU ORPE PAPEN PAALAENND OF 2004, 11 Feb 2004, 11th of the UNCITRAL COME COMCAL, 15/91, 295/91

Note 5) It is difficult to regard it as a regulation governing the rights and obligations of the general public, and internal guidelines of the Korea Consumer Agency, which is an administrative agency.

6) In the lower part of the Ethet (No. 1) received by the Plaintiff from the GMF, the Plaintiff stated that “transport and other services provided by the airline shall correspond to the terms and conditions of the carriage, and may be viewed as necessary. This terms and conditions may be verified through the issuing airline.” In light of the transaction reality, it is inappropriate for the Plaintiff, a consumer, to confirm the terms and conditions of the necessary terms and conditions through the airline homepage, etc., even if the airline or travel employee does not ask the buyer’s questions.

(1) Article 27 (Consumer Contract) (1) If a contract entered into for the purpose other than occupation or business activity falls under any of the following subparagraphs, even if the parties choose the applicable law, the protection granted to the consumers pursuant to the mandatory provisions of the country where the consumer’s habitual residence is located shall not be deprived. 1. In a case where the other party engages in occupation or business activity prior to the conclusion of the contract in the country prior to the conclusion of the contract, such as soliciting the transaction by the advertisement, or in an area other than the country, and the consumer engages in the occupation or business activity such as soliciting the transaction by the advertisement, etc. in the country; 2. In a case where the other party has received the order of the consumer from the country; 3. In a case where the other party has led the consumer to place the order of the consumer in a foreign country;

8) “The European Community Convention on the Law of the Law of the Contract Obligations”, 1980. Article 5(4) of the Convention excludes the application of the provisions of Article 5 of the Consumer Contracts Act to the contract on the provision of services to be exclusively provided to consumers at a place other than the country in which the consumer has a habitual residence.

Note 9) This is a flexible view in Korea. tingullified, see Supreme Court Decision 2001Da226 Decided 206 of the Act on Private International Law in 201.

Notes v. Allelines, Inc., 426 U.S. 290, 293, 96 S.Ct. 1978, 48 L.E.2d 643 [1976].

Note 11) As a remedy for the misworking, ① partial change of the current compensation system (in advance notice of the order of priority on board and increase of the compensation amount), ② increase in the disclosure rate for the misworking, ③ prohibition of non-voluntary refusal to board (only permission of voluntary refusal to board), ④ removal of all government regulations on misworking (compensation, etc. in free competition) can be considered. However, it is impossible to resolve reasonably considering both parties’ positions. In the event of a situation of refusal to board due to misworking, there is no upper limit of compensation borne by airlines on the part of the terms and conditions or laws, so that airlines can maintain the current rate of suspension to prevent the misworking and to prevent competition of airlines who actively engage in misworking from being exposed to the refusal to board.