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

UNFFT Co., Ltd. (Law Firm Gyeongsung, Attorneys Lee Lee-woo et al., Counsel for the defendant-appellant)

January 30, 2009

1. The Defendant released Plaintiff 2’s measure of permanent suspension of use with respect to Plaintiff 2’s account “Kinggo” existing in Nice Internet games.

2. Each claim of the plaintiff 1 and 3 and the remainder of the plaintiff 2 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the plaintiff 2 and the defendant is borne by the plaintiff 2; the remainder is borne by the defendant; and the part arising between the plaintiff 1 and 3 is borne by the above plaintiffs.

Pursuant to Paragraph 1 of this Article and Paragraph 1 of this Article, the defendant shall revoke each permanent suspension measure against plaintiff 1's account's "sabutterfly", and plaintiff 3's account's "tjghhhh", and shall pay to the plaintiffs 5,00,000 won per annum from March 7, 2008 to the delivery date of the copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. Status of the parties

피고는 www.lineage.co.kr이라는 웹사이트에서 다중 이용자 온라인 롤플레잉 게임(MMORPG : Massively Multiplayer Online Role Playing Game)인 ‘리니지(Lineage)’라는 인터넷 게임(이하 ‘이 사건 게임’이라 한다) 서비스를 제공하고 있는 회사이고, 원고들은 피고와 사이에 각 이 사건 게임에 관한 이용계약을 체결하고, 원고 1은 ‘sadbutterfly’라는 계정(이하 ‘ 원고 1의 계정’이라 한다)을 만들어 위 계정 내에 ‘화월, 헬카인’ 등의 캐릭터를, 원고 2는 ‘kdinggo’라는 계정(이하 ‘ 원고 2의 계정’이라 한다)을 만들어 위 계정 내에 ‘캔사스’ 등의 캐릭터를, 원고 3은 ‘tjrghgkrh’라는 계정(이하 ‘ 원고 3의 계정’이라 한다)을 만들어 위 계정 내에 ‘굼, 내가니식모다’ 등의 캐릭터를 각 생성하여 이 사건 게임 서비스를 이용하는 이용자들이다. 다만, 원고 2는 원고 1의 처로서 원고 1이 원고 2의 계정을 주로 사용하였다.

B. Contents of the instant game

1) In order to use the game of this case first, the user created the “Account” (as selected by the user for identification of the user and for the use of the game of this case, and as a combination of the letters and numbers assigned by the company, it may create five accounts per capita) to use the game of this case, and then selected the “Character” (in the game of this case, the user may directly select and operate the game of this case) within the account.

2) In addition, the user uses the game of this case by itself creating a virtual society, such as raising the experience value of character through a test, combat, etc., or growing up while acquiring a new item, and making a living by creating a virtual community with another character, in cooperation with or competition with the character of other users by the character selected as above within the game of this case, which is a virtual space set by the Defendant, within the progred by the Defendant.

3) The user’s character is assessed according to how much item is acquired in a virtual community life as above in the game of this case. In the case of the game of this case, the user’s character is assessed according to how much item is acquired. There are “defense devices, such as inspection, windows, etc.”, “weapons,” “bathos,” “bats,” “bats,” “bats,” and “bats,” which are currency.

C. The defendant's terms of use and operation of the game service of this case

The Defendant has established the terms and conditions applicable to the instant game service contract (hereinafter “instant service contract”) and the operational policy governing internal matters of the instant service contract (hereinafter “instant operation policy”). From May 207, the Defendant announced the instant use contract to the user through the service website during the seven days prior to its application. The Plaintiffs were deemed to have consented to the Plaintiff’s failure to raise any objection within 15 days from the date of application of the modified use contract. Meanwhile, the main contents of the instant use contract are as shown in attached Table 1, and the main contents of the instant operation policy are as listed in attached Table 2.

D. Measures to permanently suspend use of each of the plaintiffs' accounts

The Defendant: (a) if Plaintiff 1 and 2 transferred an item to Plaintiff 3’s account, “Wookd928,” which was held in each of the above plaintiffs’ respective accounts, Plaintiff 3, either directly or through the Non-Party’s account (Supreme Court Decision Nonparty 1)’s “dughakd928” account; (b) transferred the item to NAPer Cacter; (c) “Nruh without good character,” and “lub, brud, brud, spad, and spad,” thereby requesting Plaintiff 1 and 2 to create the “refrut,” and (d) Nonparty 3 without any capacity to create the “refrut” item; and (d) Plaintiff 2 and Nonparty 3 were similar, but, on the ground that Plaintiff 1 and the Non-Party 3 were able to acquire and sell it to other users on the ground that it was an act of fraud from 208 to 314.208,201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, Eul evidence Nos. 1, 3, 6 through 10, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The plaintiffs are the cause of the claim. ① The management policies of this case are unilaterally enacted by the defendant and they did not consent to them. It is null and void because they violated the duty to clarify and explain under Article 3 of the Regulation of Terms and Conditions Act (hereinafter "the Regulation of Terms and Conditions"). ② It is also limited to fundamental rights under the contract to the extent that it is impossible to achieve the purpose of the contract to permanently suspend the use of the account with respect to fraudulent or cash transaction. Thus, each of the provisions of the Terms and Conditions of this case and the Operation Policy of this case are null and void as they lose fairness in violation of the good faith principle under Article 6 of the Regulation of Terms and Conditions Act. ③ Since the measure to permanently suspend the use of the account falls under 0 provisions which are likely to unfairly disadvantage the customers by relaxing the requirements of the enterpriser's right to cancel and terminate the right to cancel the contract under Article 9 of the Regulation of Terms and Conditions of this case, it is also invalid because they are not aware of the plaintiffs' right to use the account, and thus, they are not able to pay damages to each of this case's permanent use of account.

B. Defendant’s assertion

As to this, the defendant, 1) the terms and conditions and operation policies of this case are valid since they were not contrary to the Act on the Regulation of Terms and Conditions, and 2) the plaintiffs actively participated or impliedly engaged in the fraudulent act of this case by the non-party, and even if not, they should bear the same responsibility as the non-party in accordance with the terms and conditions of use and operation policies of this case concerning the issues arising from the lending of the plaintiffs' respective accounts to the non-party, and 3) Furthermore, since the plaintiffs engaged in cash transactions prohibited by the terms and conditions of use and operation policies of this case, such as giving and purchasing cash at least three times from the non-party, the above permanent suspension measures against the plaintiffs against the non-party are justified as they are in accordance with the terms and operation policies of this case.

3. Determination

A. Whether the terms and conditions and operational policies of this case violate the Act on the Regulation of Terms and Conditions

1) Whether the instant operational policy violates Article 3 of the Act on the Regulation of Terms and Conditions

In light of the above facts, Article 14 (1) of the Terms and Conditions of Use of this case provides that "If a user commits any of the following acts, the company may take appropriate measures, such as suspending the use of services, restricting the use of services, such as deletion of accounts, and filing a complaint with an investigative agency, in accordance with the operation policy separately provided by the company," and Article 14 (14) of the same Act provides that "the user shall check at any time all the policies or regulations, such as the notice on the service website and the management policy determined by the company," and the plaintiffs did not raise any objection against the modified terms and conditions of use of this case. In light of this, it is reasonable to deem that the defendant incorporated the operation policy of this case into the terms and conditions of this case, and the plaintiffs agreed to such terms and conditions, and therefore, the management policy of this case does not constitute a violation of the duty to explain and explain under Article 3 of the Terms and Conditions Regulation Act."

2) Whether the instant terms and conditions and operational policies violate Article 6 of the Act on the Regulation of Terms and Conditions

However, according to the above facts, even if a single account is seized in which fraud or cash transaction is at issue, a user can still use the game service of this case through another account even if it is at issue, so it cannot be viewed as a provision that restricts essential rights under the contract to the extent that it is unfairly unfavorable to the customer or it is impossible to achieve the purpose of the contract. Thus, this part of the plaintiffs' assertion is without merit.

3) Whether the instant terms and conditions and operational policies violate Articles 9 and 10 of the Act on the Regulation of Terms and Conditions

However, it is difficult to view the permanent suspension of use of the game service of this case as equal to the exercise of the right of rescission or termination to terminate the use of the game service of this case between the defendant and the user, even if the user permanently suspends use of one account by the defendant. In addition, considering the terms and conditions of use of this case and the operational policies of this case explicitly prohibit the user's fraudulent act and cash transaction act in online games, and the harmful effects of the fraudulent act and cash transaction act in online games, the defendant allowed the user to take measures to permanently suspend the use of the game service of this case on the ground of the user's fraudulent act and cash transaction act, and it cannot be deemed that the provision of service is suspended without reasonable grounds. Thus, this part of the plaintiffs' assertion is without merit.

4) Whether the terms and conditions and operating policies of the instant case are null and void because they failed to prepare ex post facto remedies against permanent suspension of use of the account

In light of the above facts, Article 17(2) and Article 18(5) of the Terms and Conditions of Use of this case provides that a user may raise an objection to the defendant through the service website, e-mail, cyber customer center, etc. in the event the user’s use of his service is restricted, or the suspension of use or the contract is terminated. Thus, the plaintiffs’ assertion on this part is without merit.

B. Whether the Defendant’s measure to permanently suspend the use of each of the Plaintiffs’ respective accounts was unreasonable

1) As to the permanent suspension of use on the ground of fraud

First, we examine the plaintiff 3's fraudulent act of this case, Eul evidence Nos. 6, 7, and 8, and Eul evidence No. 13-3. In addition to the whole purport of argument as to the plaintiff 1's fraudulent act of this case, the plaintiff 3's account was transferred from the plaintiff 1 and 2's account, and it was transferred to the plaintiff 3's account, which was known to the plaintiff 3's account, again to the non-party's account, with no capacity to do so, the plaintiff 1's fraudulent act of this case's fraudulent act of this case's No. 3 is similar to the above's fraudulent act of this case's 3. The plaintiff 1's fraudulent act of this case's fraudulent act of this case's 5. The plaintiff 3's fraudulent act of this case's fraudulent act of this case's 8. The plaintiff 1's fraudulent act of this case's fraudulent act of this case's fraudulent act of this case's 1.

Next, according to the reasoning of the judgment below, the plaintiff 1 and 2's act of fraud was terminated on January 2008 by the non-party "dughd928" and the non-party 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 2's non-party 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 2's non-party 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 2's act of use of the plaintiff 1 and the non-party 2's act of fraud.

2) Whether an act of lending an account can be permanently suspended

The facts that Plaintiff 1 and 2 lent their own accounts and character to the non-party are used in fraud as seen above. Meanwhile, Article 14(7) of the Terms and Conditions of Use of this case provides that "the user shall not use a third party's account or allow a third party to use its own account" and Article 17(7) provides that "if the user intentionally or negligently causes damage to the user's use of services or violates the user's obligations due to the leakage of the user's account and/or password, it may be restricted from the use of the account due to the third party's illegal use." Article 7(4) of the Operating Policy of this case provides that "Where the user's own interest and character were shared with the third party (e.g., lending of the account, character fostering of the account, etc.), the user's liability for all problems arising therefrom shall be borne by himself, and it is difficult for the non-party 1 and the non-party 2 to interpret the terms and conditions of the lending of the account as unlawful and unjust reasons for the non-party 1's act of fraud.

3) As to the permanent suspension of use on the ground of an item cash transaction act

First, according to the plaintiff 1's cash transaction act, Gap evidence 1, Eul evidence 13-1, non-party witness's testimony, plaintiff 1's personal examination result as to the plaintiff 1's cash transaction act, the plaintiff 1 can be acknowledged as purchasing 60,000 won from the non-party on February 20, 2008, 156,000 won on February 25, 2008, 13,000 won, 60,000 won on March 3, 200, 500 won on March 3, 2008, and 14 (10)11 of the terms and conditions of use of this case provide that the defendant can take measures such as suspension of the use of the game service, restriction of the use of the account, etc. on the ground that "the defendant can take measures such as suspension of the use of the service, etc. on a permanent basis of the contract."

Next, according to the evidence adopted as above, it was true that Plaintiff 1 used the account of Plaintiff 2 as the channel of purchase in purchasing Arabics over three occasions from the Nonparty. However, it is only due to the circumstance that Plaintiff 1 was in charge of Plaintiff 2’s account on behalf of Plaintiff 2, and it is not possible for Plaintiff 2 to purchase it jointly with Plaintiff 1. Therefore, it is unfair to suspend the permanent use of Plaintiff 2’s account on the ground that it is unfair to suspend the permanent use of Plaintiff 2’s account on the ground of cash transaction. Thus, the Defendant is obliged to cancel the permanent suspension of use of the above Plaintiff’s account. Furthermore, Plaintiff 2 asserted that Plaintiff 2 was seeking payment of KRW 5,00,000 due to the permanent suspension of use so far, but Plaintiff 2 was also not negligent in exercising the right to use the Plaintiff’s account on the ordinary account as the husband, and it is not reasonable to cancel the right to use the permanent use of the account, in light of the above part, as well as the mental suffering.

C. Sub-committee

Therefore, each of the above arguments by plaintiffs 1 and 3 is without merit, and the above arguments by plaintiffs 2 are with merit only within the scope of the above recognition.

4. Conclusion

Therefore, the plaintiff 2's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. The plaintiff 1 and 3's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Kim Wil (Presiding Judge) (Presiding Justice)