(영문) 서울고등법원 2014.6.18.선고 2013나2022230 판결

The judgment of the first instance shall be revoked. The defendant shall be revoked for the plaintiffs, and each of the items in the column of "amount claimed" in the attached Table 2.

Money and 20% per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

shall pay the amount of money calculated by the ratio of this section.

Reasons

1. Quotation of judgment of the first instance;

The reasons for this part are as follows: 1. 2 . . . . . . . 2 . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 'the loan agreement of this case' of this case . . 2 . . . . . . . . 1 . . . . . . . . . . . . 1 . . . . 2 . . . . 1 . . . . 1 . . . 4 . . . . . 1 . . . . . 1 . . 2 . . . . . 'the loan of this case . . 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . . . . . .. . ....... . . .......................... . . . ................. ..................................... ....................................... ................................ .....

2. Determination as to the claim of the remaining plaintiffs in Paragraph (1)

A. According to Article 2(1) of the former Act on the Regulation of Terms and Conditions, a contractual term refers to a contractual term that becomes the content of a prior agreement prepared by either of the parties to a contract to enter into a contract with a large number of other parties, regardless of its name, form, or scope. However, in a case where one of the parties to a contract enters into a contract by presenting the terms and conditions to a certain other party, if the other party has an opportunity to adjust his/her interests by conducting an individual negotiation (or negotiation) as to a specific provision with the other party, such specific provision shall be deemed an individual agreement not subject to the regulation of the Act on the Regulation of Terms and Conditions. However, for the existence of an individual negotiation, even if the result of the negotiation does not necessarily appear in the form of changing the contents of a specific provision, it shall be deemed that the other party has the potential to enter into a prior negotiation without being bound by a sufficient review and consideration of the specific provision, and it shall be proved that the other party bears the burden of an individual agreement between the other party and the other party to the contract.

3) However, it can be said that the instant burden selection clause presents three types of the burden subject and allows them to choose, opening the possibility of individual negotiations to determine the contents of the contract within the scope of its choice. Therefore, as alleged by the Defendant, the Defendant’s assertion is not acceptable, since the content of the contract under the instant burden selection clause is not bound by the limited selective items provided for in the instant burden selection clause through individual bargaining or promotion, and the Plaintiffs have the opportunity to adjust the interests of the Plaintiffs, such as not being bound by the limited selective items provided for in the instant burden selection clause through individual bargaining or promotion but modification of the contents thereof, etc., in light of the legal principles as seen earlier, as to whether it can be recognized as an individual agreement separate from the instant burden selection clause itself, and there is a lack of proof of such individual and specific circumstances as seen below, and thus, the Defendant’s assertion is not acceptable.

① In the case of a loan transaction in which the plaintiffs among the plaintiffs indicated the plaintiffs as the main body of bearing the loan-related expenses, as long as the terms and conditions of the instant option clause are acknowledged, in order to establish an individual agreement with one of the parties to determine the main body of bearing the loan-related expenses, it should be presumed that the customer opened the possibility of the instant option clause as to how to determine the main body of bearing the loan-related expenses, and it should be presumed that the customer had an opportunity to adjust his interests through individual negotiations and reached that choice. In light of the selective form and content of the instant option clause, it is difficult to see that such individual negotiation is planned or secured as a matter of course, and there is no evidence to see that the parties selected the plaintiffs as the main body of bearing the loan-related expenses through individual negotiations.

② In the case of loan transactions without any indication on the matter of choice under the instant burden selection clause among the Plaintiffs, it is more difficult to recognize that there was an individual negotiation, and there is no other evidence to acknowledge the establishment of an individual agreement, such as the Defendant’s assertion.

B. Whether the instant provision on the selection of allotment is null and void

1) In order for the instant provision to be null and void, Article 6(1) of the former Act on the Regulation of Terms and Conditions must be deemed to fall under the category of unfair terms and conditions in violation of the principle of trust and good faith. It is insufficient to find that the standardized terms and conditions were somewhat unfavorable to customers to fall under such a case. It is not sufficient that the standardized terms and conditions developer abused its position in trade, thereby impairing the sound trade order by preparing and using the standardized terms and conditions against the legitimate interests of the contracting party against the reasonable expectation. In addition, the issue of whether the standardized terms and conditions are "unfairly unfavorable terms and conditions to customers" that constitute grounds for invalidation of the standardized terms and conditions should be determined by considering all the circumstances such as the content and probability of disadvantage that may arise to the customers under the standardized terms and conditions, impact on the transaction process between the parties, and burden of disclosure of the standardized terms and conditions as stated in Article 6(2) of the former Act before and after the enactment of the standardized terms and conditions and the purport of the amendment of the former Act on the Regulation of Terms and Conditions.

B) On January 1, 2005, the Fair Trade Commission received a request from a consumer organization, etc. to revise the request, and revised the Act to specify the person to whom the standard terms and conditions are to be borne in advance and specifically by each expense through the recommendation procedure of the request for examination of standard terms and conditions pursuant to Article 19-2 of the former Standardized Contracts Regulation Act. On February 11, 2008, the Korea Federation of Banks, etc. issued a license to use the amended standard terms and conditions

C) The standard terms and conditions system under Article 19-2 of the former Act on the Regulation of Terms and Conditions established in order to establish a sound trade order and prevent unfair terms and conditions from being widely used. The Fair Trade Commission’s administrative decision that a request for the use of standard terms and conditions in a certain business area constitutes unfair terms and conditions, etc. is a prior and administrative measure to prevent damage to many customers by preparing standard terms and conditions reflecting the economic conditions in a certain business area and the various interests of members and encouraging the use thereof. Article 19-2 of the former Act on the Regulation of Terms and Conditions provides separate procedural requirements, legal effects, etc. from the provisions of Articles 6 through 14 and 17 of the former Act, considering the purport of the disposition system for the use of standard terms and conditions and the purport of the standardized terms and conditions.

D) The Fair Trade Commission revised the instant burden selection clause as the standard terms and conditions and recommended the use thereof, reflecting the purpose of the standard terms and conditions system, and took into account policy aspects to prevent consumer complaints and disputes and to establish order in fair trade. It seems that the Fair Trade Commission made an administrative decision in order to ensure that customer can easily choose the lending product by reducing information search expenses regarding the burden of loan-related incidental expenses and by comparing only loan interest rates of financial institutions and to enhance the competitiveness of financial institutions by making efforts to reduce loan-related incidental expenses, thereby promoting customer convenience and promoting competition among financial institutions.

E) Furthermore, the former standardized terms and conditions prior to the enforcement of the instant standardized terms and conditions stipulate that the customer should bear in full the expenses incurred in connection with loans. However, the instant standardized terms and conditions were prepared to protect the interest of the customer by specifying the opportunity for the customer to choose from the total amount of the expenses as the standardized terms and conditions, and were recognized as the standardized terms and conditions subject to prior examination and approval by the Fair Trade Commission. Furthermore, when the customer selects to bear the expenses incurred in loans pursuant to the instant standardized terms and conditions, compared to the cases where the financial institution bears the expenses, the contents favorable to

There is also an aspect that the transaction can be conducted.

C. Sub-committee

Therefore, the plaintiffs' claim for the return of unjust enrichment cannot be accepted, since the expenses incidental to loans borne by the plaintiffs pursuant to the burden selection clause of this case cannot be deemed to have no legal grounds.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiffs' appeal is dismissed as it is without merit. It is so decided as per Disposition.