1. The term "landmark" means landmark, landmark, landmark, landmark, and landmark.

Korea Land and Housing Corporation (Law Firm Oi, Attorney Hong-jin, Counsel for defendant-appellant)

April 10, 2012

Seoul Central District Court Decision 2010Kahap105698 Decided August 25, 2011

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff Gyeongnam Enterprise Co., Ltd. the amount of KRW 2,100,000,000, and the amount of KRW 900,000,000 and each of them shall be 6% per annum from May 8, 2009 to June 23, 201, and 20% per annum from the next day to the day of full payment.

1. Basic facts

The reasoning for this part of the court's explanation is the same as that for the corresponding part of the judgment of the court of first instance, and thus, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. The plaintiffs' assertion

A. The instant provision is deemed to be null and void as it violates Articles 6(1), 6(2)1, and 11 subparag. 1 of the Regulation of Standardized Contracts Act (hereinafter “Standard Contract Regulation Act”) and is null and void as it violates Article 19 of the Act on Contracts to Which the State is a Party, which provides for the adjustment of contract amount due to price fluctuation, etc. (hereinafter “State Contract Act”), and Article 64(1)2 and (7) of the Enforcement Decree of the same Act, and is null and void as it violates Article 3(3) of the General Conditions for the Construction Contract of this case.

B. Even if the instant provision is valid, ① the Defendant did not explain the instant provision, which is an important content of the terms and conditions at the time of entering into the instant contract, pursuant to Article 3(4) of the Act on the Regulation of Terms and Conditions, the said provision cannot be asserted as the content of the contract. ② Since the instant provision suffered exchange loss, due to abnormal exchange rate increase in the global financial crisis following the conclusion of the instant contract, which led to the Plaintiffs KRW 13.1 billion, the contract price should be adjusted according to the principle of good faith.

C. Nevertheless, by the Defendant’s refusal to adjust the contract amount due to the exchange rate fluctuation due to the old room, the Plaintiffs additionally bear KRW 13,130,013,00 due to the exchange rate fluctuation, while the Defendant gains profits equivalent to the same amount without any legal grounds, and thus, the Defendant seeks a return of the amount of unjust enrichment, such as the written claim, as stated in the purport of the claim.

3. Determination

A. Whether Article 6 and Article 11 of the Act on the Regulation of Terms and Conditions are violated and thus invalid

Article 6 (1) of the Act on the Regulation of Terms and Conditions provides that "any standardized contract which is unfair against the principle of trust and good faith shall be null and void." Article 6 (2) 1 of the same Act provides that "if a standardized contract provides unfair unfavorable terms to a customer, the standardized contract shall be presumed to lose fairness." Article 11 (1) of the same Act provides that "any standardized contract which provides for the exclusion or restriction of customer's right of defense, offset right, etc. without good cause among the standardized contract terms and conditions concerning customer's rights and interests, shall be null and void." However, on April 16, 2007, when the contract of this case was concluded, exchange rate increase due to the global financial crisis that occurred in 2008, could not be anticipated at the time of the conclusion of the contract, and if exchange rate decline after the conclusion of the contract, it would not be easily expected that all the parties to this case will result in exchange profits, it would be more likely that the plaintiffs can be seen that the above standardized contract clause would not be unfair, as it would not be justified.

B. Whether Article 19 of the State Contracts Act is null and void

1) Article 19 of the State Contracts Act provides that "the head of each central government agency or the public official in charge of contracts shall adjust the contract amount under the conditions as prescribed by the Presidential Decree, if it is necessary to adjust the contract amount due to price fluctuation, design modification, or any other modification to the terms of the contract after concluding a contract for construction, manufacture, service, or any other contract that imposes a burden on the National Treasury only." Article 64 (1) 2 of the Enforcement Decree of the State Contracts Act provides that "the head of each central government agency or the public official in charge of contracts shall adjust the contract amount as prescribed by Ordinance of the Ministry of Strategy and Finance if the index adjustment rate calculated on the base date increases or decreases by 3/100 or more of the contract amount after the lapse of 90 days from the date of signing the contract that becomes a burden on the National Treasury under the provisions of Article 19 of the Act." Paragraph (7) provides that "The head of each central government agency or the public official in charge of contracts shall adjust the contract amount by reason of price fluctuation or exchange rate fluctuation, and thus, the State or most of the contract contracts shall be deemed null and void.

2) As to the instant case, exchange rate of 1 to 5, 11 to 16, respectively, were less than 00 per annum 20. The Defendant held on September 27, 2006, which was 6 months before the date of the conclusion of the instant contract and distributed the bidding guide containing the instant provision to the participating companies, including the Plaintiff, 10. The amount related to the foreign currency material was 0.06 U.S. dollars 1 to 600,000,000,0000 were 1 to 0.77,0000,0000,0000,0000,000 were 1 to 0.7,000,000,0000,000,000 won were 1 to 0.7,000,0000,000 won were 1 to 7,000,0000 won.

C. Whether Article 3(3) of the General Conditions of the Construction Contract is invalid

According to the evidence No. 10, Article 3(3) of the General Conditions of the Construction Contract provides, “Where there is any provision unreasonably restricting the contractual interests of the contractor under the accounting rules, construction-related Acts and subordinate statutes, and this condition, the content of the special condition shall not be recognized.” However, in light of the circumstances leading up to the conclusion of the instant contract and the degree of restriction on the application of the contract amount adjustment clause under the State Contracts Act, etc., the instant provision cannot be deemed to be unreasonably restricting the interests of the Plaintiffs. Therefore, the Plaintiffs’ assertion is without merit.

D. Whether the instant provision cannot be asserted as the content of the contract in violation of the duty to explain

Even if the contents of the terms and conditions subject to the duty to specify and explain under Article 3 of the Act on the Regulation of Terms and Conditions are important, in cases where the customer or his/her agent sufficiently knows the contents of the terms and conditions or is common and common in the transaction, and the customer could have sufficiently anticipated such matters without any separate explanation, it cannot be said that the business operator has the duty to explain and explain such matters (see, e.g., Supreme Court Decision 2007Da8044, May 27, 2010). Since the employees of the technology team in charge of the tender in the Plaintiff Gyeongnam company who reviewed the provisions of this case before entering into the contract of this case and knew the contents of the contract of this case, the plaintiffs' above assertion is without merit

E. Whether the contract price adjustment should be made due to changes in circumstances under the principle of good faith

Where objective circumstances, which form the basis of a contract, have been significantly modified after the formation of the contract, and such changes have occurred due to reasons not attributable to the parties, and where the binding force of the contract is recognized as well as the parties, if it would be remarkably contrary to the good faith principle, and furthermore, it would be impossible to modify the contents of the contract or make it impossible to expect one party to do so, the other party, as an exception to the principle of contract observance, may either terminate the contract in the future or request amendments to the contents of the contract in accordance with the good faith. The circumstances referred to in this context refer to objective circumstances, which form the basis of the contract, and do not mean either party’s subjective or personal circumstances. In cases where a change occurs after the formation of the contract, which are not the basis of the contract, thereby causing damage to either party by being unable to achieve the intended purpose of the contract at the time of the contract, barring any special circumstances, maintaining the validity of the contents of the contract as they are cannot be deemed to contravene the good faith principle (see Supreme Court Decision 2004Da31302, Mar

With respect to the instant case, as seen earlier, following the international financial crisis arising from the American housing mortgage loan after the conclusion of the instant contract, the exchange rate for the Japanese United Nations, which is the settlement currency for the Sweden Cine and Sbbbs in the settlement currency for the Sweden, as seen in Section 3-B of the above 3-B, was increased, and as a result, the import price of the Sweden and Sbs in the Korean won converted into the Korean won increased, thereby resulting in the damages suffered by the counter-party Plaintiffs.

However, in light of the fact that in the case of foreign currency materials, anyone can expect that the import price may vary due to exchange rate fluctuation; the Defendant announced that the contract price of foreign currency materials is a fixed amount that cannot be adjusted before bidding; and the Defendant announced the bidding in consideration of price fluctuation (such as exchange rate fluctuation) that may arise during the contract period before bidding; the Plaintiffs and the Defendant agreed on the fixed amount to take over the risk of exchange rate when the exchange rate changes depending on the direction and width different from each other’s expectation; and it cannot be deemed that the exchange rate remains within a certain range after the conclusion of the contract in this case, it cannot be deemed that maintaining the validity of this contract does not go against the good faith principle even if the Plaintiffs suffered damages due to a change in the exchange rate in the direction and width different from the Plaintiffs’ anticipated after the conclusion of the contract in this case. Accordingly, the Plaintiffs’ assertion is without merit.

4. Conclusion

Therefore, the plaintiffs' claims in this case are all dismissed due to the lack of reasons, and the judgment of the court of first instance is just and it is so decided as per Disposition.

Judges Kim Heung-jin (Presiding Justice)