2010Du15876 Transportation charges

1. Title ○○

2. Ma○○

Since it is a minor, the legal representative parent ○

[Defendant-Appellee] The Plaintiffs’ Address Si

[Judgment of the court below]

Attorney Lee Sung-sung

○○ Aeronautical Corporation

Seoul

representative director ○○, west-○, Branch-○

Law Firm LLC, Attorney Park Jae-soo

Attorney Ahn Yong-il, Attorney Park Jong-jin, Counsel for the defendant-appellant

January 21, 2011

February 18, 201

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant is equivalent to 110, 977ma, and 73, 985ma to the plaintiff Jeong-○.

Each aviation mileage shall be provided.

1. Basic facts

(a) The telecomtoo (Death on January 29, 2010, hereinafter referred to as "the Deceased") provides by the Defendant Company.

Using transportation services, entering into an agreement with the Defendant Company to join the ScarS Member;

High, the number of aviation mileage was set aside on 184, 963 Mail before death.

B. The Plaintiff ○○○ is the wife of the deceased, and the Plaintiff Y○○ as the children of the deceased, and is the co-inheritors of the deceased.

C. The terms and conditions of the defendant company's Scarbs Member Agreement applied at the time of the deceased's death (hereinafter referred to as "the deceased's death").

The terms and conditions of the contract, and the provisions of Article 7 among them are referred to as "the terms and conditions of the contract of this case".

as set forth in paragraph (1).

D. The Act on the Regulation of Terms and Conditions (amended by Act No. 10169, Mar. 22, 2010; hereinafter the same shall apply)

The provisions related to this case in the Act on the Regulation of Terms and Conditions are as shown in attached Form 2.

【Unsatisfied Facts, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, and Gap evidence 4;

The purport of all pleadings

2. The party's assertion and its determination

A. Party’s assertion

1) The plaintiff's assertion

A) If the customer accumulates a certain mileage, the customer shall be entitled to air traffic rights of a specific airline.

the use of other airline services for a long time under the expectation that such services may be obtained, and any particular aviation

of this title, the right to obtain a payment for the use of the air services by the Corporation, which shall be vested in

It is the right that is the object of inheritance because it does not fall under the right of good faith.

B) Nevertheless, Article 7 of the Clause of this case which limits inheritance of mileages is ① Article 7 of the Act on the Regulation of Terms and Conditions

Article 6(2)1 of the Act on the Regulation of Terms and Conditions, 2. Article 6(2)3 of the Act on the Regulation of Terms and Conditions

section 35(1) of this title.

(3) has lost fairness in violation of the principle of good faith under Article 6 (1) of the Act on the Regulation of Terms and Conditions.

It is invalid because it falls under "the terms and conditions clause".

C) Accordingly, the Plaintiff, as co-inheritors, is an aviation mileage equivalent to 184, 963ma, accumulated by the Deceased.

Since the defendant company is deemed to have succeeded to the plaintiffs according to their share ratio, the defendant company shall have the right of plaintiff 1.

○ An air mileage equivalent to 110, 977ma ( = 184, 963max 3/5) on 110, 977 E, to the Plaintiff Jeong-○.

each obligation to provide aviation mileage equivalent to 73,985 E ( = 184, 963 E x 2/5).

2) Defendant’s assertion

A) The mileage shall be provided as a seat or a seat increase according to the circumstances of the Defendant Company.

as a kind of expectation right to apply for such benefit, if any;

on the other hand, the Defendant Company’s preferential treatment to its commercial customers (lyalty)

The essence of mileage is to promote the sale of airline tickets by promoting the airline tickets.

on the basis of the status of the defendant corporation as a scarsh member, scarsh member

shall not be transferred separately from the status of the entity.

B) Therefore, Article 7 of the Terms and Conditions of this case is not possible to inherit from its original point of view.

It is only a provision that confirms that inheritance is impossible, and has the effect that restricts inheritance.

No provision can be seen as a provision. Even if it can be seen as such, the regulation of terms and conditions cited by the Plaintiff.

No violation of the provisions of Article 1 of the Act shall be committed.

C) Accordingly, the scarsh aviation mileage accumulated by the Deceased, along with the deceased’s death, is all cattle.

The plaintiffs shall not be deemed to have succeeded to the property of the plaintiffs.

B. Determination

1) Legal nature of mileages

(A) the object of the property right worth protection;

business customer preferential treatment system means a greater number of business operators by securing a stable and continuous customer;

in order to create profit, the consumer who purchases goods and services ceases to do so in a single transaction.

institution which gives an opportunity to continuously form a transactional relationship in the future in the future.

As a result, certain points shall be given at the time of purchase, such as the airline mileage of this case, and thereafter,

The mileage or points system that can be utilized as a price in a contract concluded;

in Korea, the defendant corporation first Doese system in 1984.

at present, credit card, communication, gas station, department store, large-scale discount, as well as air industry.

It is widely used in various fields.

According to the terms and conditions of the Scarsh agreement of this case, the Scarsh Member may have the air tickets of the Defendant Company.

If a certain amount of mileage is accumulated in accordance with the criteria set by the Defendant Company upon purchase,

Issuance of an airline ticket in return for the payment of mileage to the Defendant Company, and a rise in the seat;

the request, etc., and the Defendant Company shall use the mileage from the Scarsh Members.

If such a request is received, no such request may be rejected unless there is a remaining Bobner seat.

(c) Such mileages are goods or services provided by the defendant company under certain conditions.

Since it can be exchanged, the property value of mileage is affirmed, and therefore, it is reasonable to do so.

rights of customers who hold and use the land (hereinafter referred to as "right to use mileage") are simple.

It should be viewed that the property right is protected beyond the right of expectation.

B) Whether the right to use mileage is essentially a non-exclusive right

The defendant is a commercial customer with the right to use mileage of the defendant company as a member of the Scarsh.

as the premise is that it can not be transferred to another person, separate from the status of the Scarsh member.

It argues that the quality has the characteristics of quality.

A member who has received mileage shall be allowed to freely transfer it to others.

the defendant company's airline tickets are continuously sold to the defendant company.

Since the basic purpose of the mileage system can be eliminated, the status of members can be separated from that of members.

There is sufficient need to restrict the transfer of mileage. However, the right to use mileage is its original nature.

A member who is a creditor does not have the right to be derived from his or her own character, and who is the creditor.

there is no need to modify the substance of the payment, unless the change is caused by such change.

Since re-afforcing alone cannot be deemed to be a right of good faith for the sake of attribution, marinan,

in principle, the right to use shall be subject to inheritance unless there are special circumstances (A).

As seen earlier, the representative airlines of Japan allow the inheritance of mileage vouchers.

Therefore, as the defendant's assertion, the right to use the terms of this case is essentially entitled to mileage.

The meaning of re-verification that the inheritance is impossible cannot be seen as a kind of clause.

C) Whether an agreement is possible to restrict inheritance of mileage vouchers

As above, the right to use mileage is, in principle, the right to inheritance.

(1) If a member dies under an agreement between the parties to a contract for the use of mileage, the action for the death of the member shall be taken

It is also the principle of private autonomy to block the effect of inheritance in such a way as to be prescribed by the condition of extinction.

permitted by law and constitutes anti-social order acts in violation of Article 103 of the Civil Code.

shall not be deemed to have been prevented by an individual agreement between the parties, provided that such blocking of inheritance effects is by an individual agreement between the parties.

Moreover, as in this case, the terms and conditions of the use of mileage unilaterally prepared by the business operator

In other words, whether the terms and conditions are unfair or not is a matter to be judged separately.

In detail, this paper examines the issues.

2) Whether Article 7 of the Terms and Conditions of this case is unfair

A) Whether a clause is unreasonably unfavorable to a customer

(1) In determining whether a standardized contract clause is unreasonably unfavorable to a customer,

on the basis of the balancing of interest between a business entity and a customer, the business entity obtains profits from any specific provision;

Compared to what interest has been given to the customer for the purpose of

there is any disadvantage to the contract, but there is interest in other matters, and the overall content of the contract is justified.

If so adjusted, it cannot be said that it is an unreasonably unfavorable provision to the customer. In addition, if so adjusted,

whether there is "unfair" or not shall be the intention and purpose to establish the terms and conditions in question, and ordinary transactions in the type of business in question.

Practices, relevant Acts and subordinate statutes, characteristics of goods or services subject to transactions, business needs of business operators and customers;

It shall be determined in comprehensive consideration of the contents, degree, etc. of disadvantage.

(2) The mileage of a deceased member cannot be inherited, and the automatically extinguished terms and conditions of this case shall not be automatically extinguished.

of the members, which limits the freedom of inheritance of the right to use mileage guaranteed to customers as members.

There is room for recognizing that the clause itself is a clause disadvantageous to the customer.

In this regard, the defendant corporation pays the mileage to the meaning of the will of the customer.

Since it is merely a benefit of free use, the extinction of mileage due to inheritance is not a customer.

1. First boarding mileage 1.0

the airline tickets are purchased from the company, the airline tickets shall be granted in proportion to the distance on board.

In determining the sales price of airline tickets, the value of goods and services necessary for aviation;

operating airlines, such as marketing costs for promotion of airline tickets, not including the inclusion thereof;

as part of marketing, since all incidental expenses incurred in this section are reflected;

this is included in sales proceeds as well as the opportunity to provide additional air services granted.

It cannot be said that a customer receives benefits without compensation, and ② Partnership mileage (mainly, the Defendant Company)

in the case of a credit card company to be granted in proportion to the amount of credit card use by the credit card company

The customer pays for additional annual fees, etc., which shall also be the customer; and

The customer shall not be deemed to have received benefits free of charge. Accordingly, the customer shall pay for the amount of compensation.

The loss of acquired mileage for any reason may be treated as a disadvantage to the customer.

On the other hand, it should be recognized.

(3) However, each entry of Gap evidence 8, Eul evidence 4 to 18 (if any, a tentative number)

(including title) the mileage and title of the Defendant Company, which may be recognized by integrating the purpose of the entire pleading;

Terms and Conditions of this case may be caused by the provisions of this case in full view of various policies and all circumstances.

the terms of this case are compared and compared to the disadvantages of the customer and the interests of the airline.

It is difficult to readily conclude that it is an unreasonably unfavorable provision to the Plaintiff.

(A) First, with respect to the intent and purpose set forth in the terms and conditions of this case, the health team and mileage shall be held.

To impose restrictions on the direct use of mileages by a member who has received it, securing commercial customers;

as seen earlier, consistent with the purport of the mileage system. In addition, as the defendant corporation, e.g.

The rate of mileage is set aside as a debt reserve, and the customer is accumulated as a debt reserve.

As the amount of debt increased, the soundness of the financial structure becomes worse due to the increase in the amount of debt, so mileage is less than

There is a need for business to promote the extinction. In principle, such business needs are required.

Expansion of opportunities to increase the number of seats and raise the number of people, expansion of partnerships using mileages, etc.

It shall be achieved by providing members with sufficient opportunities to use mileages.

It should not be achieved in such a way that it would be desirable and harmful to customers; however, it should not be achieved in such a way.

Madage extinction even if a member dies to avoid any disadvantage to the customer;

If the heir is deemed to succeed to the remaining property without being required to do so, the heir shall be deemed to be entitled to do so.

Where the mileage is not used due to his/her ignorance of the existence thereof, the mileage shall be the effective period.

or permanently 1) Since the defendant corporation remains its liabilities, the defendant corporation is not entitled to such forecast.

All mileages shall be extinguished upon the death of a member in order to escape from a able burden.

I seem to adopt a clear and clear method.

In addition, if the above liabilities are not settled properly, it shall be closed from the standpoint of the defendant company.

The criteria for payment of mileage shall be reduced or reduced through the change of the terms and conditions, etc.

The Defendant Company will have the incentive to minimize the accumulation of the reserve fund for the debt of mileage, which is the case.

(1) Commercial customers (the mileage may be accumulated once, but in fact, the mileage shall not be accumulated.

A genuine commercial customer (the mileage shall continue to be a customer who has no intention to use)

to the customer who intends to reserve and actively use it; and

(1) Giving preferential treatment to commercial customers, which is not consistent with the basic purpose of the mileage system.

(2).

Therefore, this case introduced by the Defendant Company to maintain an appropriate level of mileage.

Provisions of the terms and conditions are necessary for the business and are recognized as reasonable in the purpose.

(B) On the other hand, we examine the disadvantage suffered by the customer due to the above system.

(1) The mileage or points system is widely used at home and abroad.

Law, ○○ aviation, a domestic airline in competition with the Defendant Company, also the top of mileage

a credit card company which is implementing the points system as well as not only does it permit any such institution.

In addition, allowing inheritance rather than allowing inheritance, such as not allowing inheritance of points.

In light of the fact that it constitutes a practice, we look at the general consumers about the inheritance of mileage.

It can not be said that there is a clear and solid expectation interest.

(2) Points accumulated by using credit cards, etc. shall be necessary for daily life.

While utilizing goods and services to purchase goods and services, it may relatively be easy to boost, on the other hand, aviation paralysis.

- The specifications of mileage except for the purchase of a lottery ticket and the increase in the seat, in particular, with the Defendant Company;

If the opportunity to take advantage of is very limited, the majority of the people who do not frequently take long-distance travel or travel.

In the case of members using air mileage, since there are not many opportunities for use as a counter-person,

To the extent that the expected interest of inheritance for the mileage that has not been used by himself/herself is universal and solid.

In addition, at least a higher level than the expected interest of credit card points members.

It is thought that, on the other hand, the defendant company is a family member registered with the deduction of his mileage.

parent, parent, spouse, child, child, sibling, sibling, parent, parent, parent, parent, parent, parent, fraud, friend, and friend.

Between families of "the system that is capable of issuing Boneral air tickets to the nivers, foreign grandparents, and children of foreign grandchildren"

In the event that it is insufficient to use the system of transfer of Bobners and its member's own Bobners, it is insufficient to use the system.

Family members registered with mileage (spouse, parent, child, pro-parent, pro-child, pro-child, pro-child, and pro-child, centered on the member himself/herself.

of its members, only five members, including the member himself/herself), who have been provided by the member himself/herself; and

As a system that can be issued, the Defendant Association operates a system for summing-up of mileages between families, which is a system that can be issued,

(1) If the customer has no opportunity to use his/her own mileage, the customer shall be required to do so.

Inheritance of mileages by customers by transferring or adding it to the family;

It can be seen that it gives a certain amount of compensation for the expectation interest deprived of it.

③ Meanwhile, the Plaintiff’s inheritance right is infringed upon due to the terms and conditions of this case.

I point out B. However, in determining whether the terms of this case are unfair, I think that the terms of this case are unfair.

(1) The heir is not the other party to the contract of use, and the heir is not the other party to the contract of use.

It is not necessary to consider.

In addition to this, the inheritance of mileages is also examined about the practice of the same overseas industry.

A license cannot be considered as a universal practice among global airlines.

Overseas airlines that allow the inheritance of some mileages (NA), Japan's full-time air operator (NA), Japan's aviation

(JAL) In addition, the heir may assert inheritance due to the burden of the accumulation of the above debt.

limit the cross-border to a short period of six months or one year, and thereafter the mileage ceases to exist.

The term of validity of mileage itself is set up in a relatively short period of not more than three years.

On the other hand, in the case of the defendant company, the term of validity is entirely applied to mileage accumulated before July 1, 2008.

not, but thereafter, five years (the expected to be extended to 10 years in the future) of mileage accumulated thereafter.

In light of the fact that the term of validity is applied, the mere fact that the provision of this case exists shall be avoided.

the corporation, as above, has a greater disadvantage to the customer compared to the airlines which allow inheritance.

The mileage system shall not be deemed to be operated by the method, in other words, at an appropriate level.

policies of airlines to maintain their policies are subject to decisions relating to marketing of each airline.

may be operated in a variety of ways to the extent that it is deemed reasonable, and

There is no inevitable reason to collect in any direction.

B) to the extent that the purpose of the contract is not achieved, limiting essential rights under the contract.

Whether the clause is "a provision" or not

It is limited to physical impossibility that the purpose of the contract cannot be achieved under the above provision.

Native social norms include cases in which achievement of the purpose of the contract is endangered, and the essential rights of customers

to restrict any obligation is the nature of the contractual relationship and without that, the conclusion of the contract.

In any case where he/she has no meaning or is changed to another type of contract;

under the terms and conditions that deviate from such obligations.

However, the primary purpose of the mileage member is to achieve in the use contract of mileage.

It is used for purchasing airline tickets, etc., and Paragraph 7 of the Clause of this case

The purpose of the contract, which restricts the freedom of inheritance of this member, is the use of mileage.

It cannot be said that the conclusion of the mileage use contract is dangerous or unnecessary.

subsection 7 of the contract of this case is essential to the extent that the purpose of the contract can not be achieved.

section that limits appropriate rights does not fall under "a clause that limits appropriate rights".

C) Whether it constitutes "a clause that has lost fairness in violation of the principle of good faith"

The principle of good faith in this context is unilaterally drawn up by the business entity and the contract.

the contract without sufficient opportunity to consider or confirm the content of such specific provision.

in light of the process of the formation of the contract under which the contract is to be concluded, the terms and conditions developer shall give due interest to the other party.

the terms and conditions of a contract that do not go against a reasonable expectation and are fair;

The principle refers to the principle.

In determining whether a customer falls under the “unfairly unfavorable clause”, this review is conducted.

In light of all circumstances, the provision of this case is fair in violation of the principle of trust and good faith.

It can not be seen as falling under "the lost clause".

3) Sub-decisions

Ultimately, the purport that the mileage is extinguished at the time of the death of a member and the inheritance is not permitted.

The plaintiffs' assertion that the provision of this case constitutes unfair terms and conditions is invalid is without merit.

3. Conclusion

Therefore, the plaintiffs' claims of this case are dismissed as it is without merit. It is so ordered as per Disposition.

this decision is delivered.

Judge Choi Jong-soo

Judges Hong Jin-young

Judges Kang Jin-hun

1) The Defendant Company introduced the term of validity of mileage from July 1, 2008, and applied the term of validity to mileage accumulated previously.

According to the Defendant’s assertion, the term of validity is about 71% of the total mileage.

of this subsection.