[1] The meaning of "false or exaggerated advertisement" under Article 3 (1) 1 of the Act on Fair Labeling and Advertising and the criteria for its determination

[2] In a case where it is impossible to determine the amount of damages due to the difficulty in proving that the occurrence of property damage is recognized, whether the court can consider such circumstance as the ground for increasing the amount of consolation money in calculating the amount of consolation money (affirmative)

[1] Article 3 (1) 1 of the Act on Fair Labeling and Advertising / [2] Article 751 of the Civil Act

[1] Supreme Court Decision 2002Du6965 Decided June 27, 2003 (Gong2003Ha, 1633), Supreme Court Decision 2008Du6646 Decided November 13, 2008 / [2] Supreme Court Decision 2005Da5843 Decided June 1, 2007

Plaintiff 1 and 82 others (Attorney Park Jong-sik, Counsel for the plaintiff-appellant)

Plaintiff 84 and two others

Korea National Housing Corporation (Law Firm Barun, Attorneys Kim Jong-jin et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na76060, 80755 decided July 22, 2009

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. As to the grounds of appeal by Plaintiffs 84, 85, and 86

According to the reasoning of the judgment below, the court below acknowledged the facts comprehensively based on its adopted evidence, and rejected the plaintiffs' assertion on the ground that the plaintiff 84, 85, and 86 on the premise that the plaintiff 85, and 86 determined the apartment of this case through the advertisement of this case to be a residential area and that the plaintiff 84, 85, and 86 on the premise that the plaintiff 84, 85, and 86 was a person who had received special supply of the apartment of this case as the first buyer, and that the advertisement of this case did not have any influence in acquiring the status of each buyer.

In light of the records, the above judgment of the court below is just, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal.

2. As to the Defendant’s ground of appeal

A. As to the assertion of misapprehension of legal principles as to liability for damages under the Act on Fair Labeling and Advertising

"False or exaggerated advertisements" referred to in Article 3 (1) 1 of the Act on Fair Labeling and Advertising refers to advertisements that are different from facts or excessively unfasible to the fact and are likely to deceive or mislead consumers, and thus likely to undermine fair trade order. Whether an advertisement is likely to deceive or mislead consumers shall be objectively determined on the basis of the overall and extreme increase that consumers with common caution receive the advertisement in question (see Supreme Court Decisions 2002Du6965, Jun. 27, 2003; 2008Du6646, Nov. 13, 2008).

In light of the reasoning of the judgment of the court of first instance, the court below affirmed the judgment of the court of first instance which determined that the Defendant’s advertisement of the instant site as a site expected to be large-scale discount is an act of labeling or advertising that is likely to deceive or mislead consumers, and that it constitutes a false or exaggerated advertisement that is likely to undermine fair trade order, on the ground that it is an act of labeling or advertising that is likely to deceive or mislead consumers, and that it is likely that fair trade order would be impeded if the Defendant merely requested to review the alteration of the front commercial site, parking lot site, and landscape green belt (hereinafter “instant site”) within the instant apartment complex from Bupyeong-si.

In light of the above legal principles and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to false or exaggerated advertisements under the Act on the Fair Labeling and Advertising, or in violation of

B. As to the assertion of misapprehension of the legal principle on duty of disclosure under the good faith principle

Based on the reasoning of the judgment of the court of first instance, the court below affirmed the judgment of the court of first instance which held that the Defendant’s provision of false information through the advertisement of this case without making any effort to accurately verify the realization of the salesroom occupants in large scale violates the duty of disclosure under the good faith principle as to important circumstances that may affect the decision-making of the buyers and thus, is liable for tort under the Civil Act.

In light of the records, the above judgment of the court below is just, and there is no error of law by misapprehending the legal principles as to the duty of disclosure under the good faith principle.

C. As to the misapprehension of legal principles as to the calculation of damages

In calculating consolation money, the court shall determine the amount in consideration of the overall circumstances between the injured party and the perpetrator, so it is not only reasonable to consider the amount of consolation money as well as the reason such as whether the injured party is entitled to receive compensation for the property damage caused by the accident in question from the perpetrator, and the compensation amount as well as to consider the calculation of consolation money. In particular, if it is impossible to receive compensation due to the impossibility of confirming the amount of consolation money due to the impossibility of proof, etc. even though the occurrence of property damage is recognized, such circumstance may be considered as the ground for increase in consolation money (see Supreme Court Decision 2005Da5843, Jun. 1,

In the same purport, the court below is just in holding that the defendant has a duty to pay consolation money to the buyer for mental suffering caused by a false advertisement, and there is no error in the misapprehension of legal principles as to consolation money.

D. As to the assertion of misapprehension of legal principles as to the initial date of the damages for delay

According to the reasoning of the judgment below, the court below presumed that the liability for damages caused by a tort begins simultaneously with the establishment of the liability for damages, i.e., the damage claim and the claim for damages caused by the assignment of claims for damages, which are subordinate rights thereto, were transferred to the assignee as they are, barring any special circumstances, and held on March 20, 207, which is the day following the delivery date of the complaint filed by the plaintiffs since the date of the tort. The judgment of the court below is just and it cannot be said that there were errors in the misapprehension of legal principles as to the initial date of damages caused by delay, as alleged in the grounds of appeal.

The Supreme Court precedents cited in the grounds of appeal by the defendant are different from the case and are not appropriate to invoke the case.

3. Conclusion

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

Justices Ahn Dai-hee (Presiding Justice)