(영문) 부산지방법원 2010.4.23.선고 2009나21185 판결

1. The portion of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff 3,250,000 won with 5% interest per annum from December 12, 2003 to April 23, 2010, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be borne individually by each party.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The defendant shall pay to thisC1 and each plaintiff 20,250,000 won with 5% interest per annum from December 12, 2003 to the delivery date of a copy of the application for modification of this case, and 20% interest per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. The Plaintiff has used the general telephone call from 1968 to 051-2 XX63 from 1968, and 051-2 XX-1 XX3 from 1996 to 0516.

B. The Defendant terminated the above telephone subscription contract without any specific notification procedure on August 13, 2001 on the ground that the Plaintiff failed to pay the telephone service fee of 051-2 XX-1 XX-1 XX, and that the contract on telephone service of 051-2 XX63 was also in arrears of KRW 26,820 on the ground that the Plaintiff did not pay the telephone service fee of 051-2 XX-1 XX3,000, and the contract on telephone service of 051-2 XX63 was terminated without any notification procedure.

C. The Defendant, which ought to return to the Plaintiff, offsets the Plaintiff’s overdue charge of KRW 051-2 XX63 telephone opening cost of KRW 250,00,00 against each of the above telephone overdue charges. The Plaintiff, around December 26, 2003, paid the Plaintiff a lump sum of the overdue charge of the phone, but the Plaintiff provided the said phone number to other users, thereby making it impossible for the Plaintiff to use the said phone number.

【In the absence of dispute, the ground for recognition, the evidence Nos. 4 through 14 (including the number of evidence No. 5), Eul evidence Nos. 1, 3 through 5 (including the number of evidence No. 3), the result of each personal examination conducted by the court of first instance and the court of first instance before remand, and the whole purport of the pleading as to this Co-defendant No. 1

2. Determination as to the cause of action

A. According to the above facts, the defendant is obligated to compensate the plaintiff for damages caused to the plaintiff by failing to perform his/her duty to provide services under the above general telephone subscription contract.

B. Defendant’s assertion and judgment

1) The defendant's assertion

원고는 전화이용료를 자동이체로 납부하고 있었는데, 위 051-2XX-1XXO 전화의 2001. 5. 이후 2001. 8.까지의 전화이용료의 출금일인 매달 25일에 원고의 국민은행 자동납부계좌(계좌번호 105-XX-XXXX-XXX, 예금주 이C)의 잔고가 0원이거나 이용료에 미달하여, 위 전화의 2001. 5.분(납기일 기준)부터 2001. 8.분까지의 전화이용료 합계 307,330원이 출금되지 아니하였다. 이에 따라 피고는 2001 8. 13. 시내전화이용약관에 따라 정당한 절차를 거쳐 위 전화를 직권 해지하였다.

Meanwhile, the Plaintiff was automatically paying the telephone service fee of 051-2 XX63. However, from May 2003 to October 2003, the unpaid service fee of 26,870 won occurred from May 2003 to October 2003, and the Defendant urged the payment of the delayed service fee in accordance with the city telephone use terms and conditions, but the Plaintiff was suspended from using the said telephone on October 6, 2003, and the said telephone subscription agreement was terminated ex officio on December 12, 2003.

Therefore, the termination of the Defendant’s telephone subscription contract with respect to each of the above calls is based on legitimate grounds and procedures, and the Plaintiff’s claim for damages due to nonperformance is without merit.

2) Determination

First of all, we examine the argument on the phone of 051-2 XX-1 XX. According to the evidence No. 3 (including the paper number), the Plaintiff appears to have been in arrears of 307,30 won with respect to the Defendant’s computerized data processing data. However, according to the evidence No. 2-4, No. 6, and No. 9, according to the evidence No. 2-2-2-x 12 from February 12, 2001 to August 12, 2001, the Plaintiff was in a state of suspension of use. The Plaintiff’s assertion that the Plaintiff was in arrears of 051-2-x 170 won with respect to the telephone fee of 051-2 XX1,000 on September 25, 201 from the head of the head of the Tong where the instant telephone contract was created for automatic transfer of the user fee of this case. Thus, the Plaintiff’s assertion that the above Defendant’s telephone data processing charge of 051-1,000.

Next, regarding the assertion on telephone calls 051-2 XX63. Regarding whether the Defendant had gone through a demand procedure related to the delinquency in payment of telephone service fees under the instant telephone contract to the Plaintiff, the aforementioned argument is without merit on the premise that the Defendant had gone through a lawful termination procedure on the premise that the Defendant had gone through a legitimate termination procedure, on the premise that: (a) the description of health unit, the evidence of No. 1, No. 3 through 5 (including each number), and No. 8 through 9 (including each number); and (b) the result of the personal examination of the first instance court and the first instance court prior to remand, and each of the co-defendant 1, who was a co-defendant in the instant judgment, was insufficient to acknowledge it; and

Furthermore, we examine the amount of damages that the defendant is liable to compensate for to the plaintiff.

As seen above, the Defendant is liable to compensate the Plaintiff for the aforementioned KRW 051-2 XX-6 XX telephone opening cost 250,000, as sought by the Plaintiff.

Finally, we examine the amount of consolation money. In general, in case of property damage caused by a contractual breach, the mental suffering which the contracting party received shall be deemed to have been recovered by compensating for property damage. Thus, there are special circumstances that the compensation for property damage has sustained irrecoverable mental suffering, and only if the other party knew or could have known such circumstance, consolation money for mental suffering may be recognized.

Based on these legal principles, in this case, the Plaintiff was unable to use the phone number for 30 years due to the termination of the phone subscription contract that was not legitimate by the Defendant, and the telephone number used for the long time has great importance of communication such as telephone in modern life as an important factor in the individual's specificness, etc., in light of the public nature of the Defendant company and the contents of the service provided, the social responsibility to consider the socially weak in light of the public nature of the Defendant company, and even considering the contents of the Defendant's assertion in this case, the termination of the phone subscription contract of this case can be deemed to be highly likely to avoid property damage if the Defendant used the additional premium system that was partially implemented at the time, etc., the Plaintiff suffered losses that could not be recovered only due to property damage, and the Defendant was deemed to have sufficiently known or could have been aware of such circumstances, and thus, the amount is also obligated to compensate the Plaintiff for consolation money due to the Plaintiff's mental distress. Considering the above circumstances and the fact that the Defendant contributed significantly to the termination of the contract of this case, it is reasonable to determine to KRW 300 million.

Therefore, the defendant is obligated to pay to the plaintiff 3,250,000 won and damages for delay calculated at each rate of 5% per annum under the Civil Act until April 23, 2010, which is the date of the judgment of this case where it is recognized that it is reasonable for the defendant to dispute about the existence or scope of the obligation of this case from December 12, 2003 when the defendant did not perform the obligation under the general telephone contract that the defendant entered into with the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claims are dismissed without merit. Since the judgment of the court of first instance which partially different conclusions are unfair, the part against the plaintiff falling under the above order of payment among the judgment of the court of first instance is revoked, and the above money is ordered to be paid to the defendant, and the remaining appeal of the plaintiff is dismissed as it is without merit. It is so decided as per Disposition.