Plaintiff (Attorney Hwang-sung et al., Counsel for the plaintiff-appellant)

Defendant 1 Co., Ltd. and one other (Law Firm Cheong rate, Attorneys Long-dilution et al., Counsel for the defendant-appellant)

April 24, 2009

Busan District Court Decision 2008Da7341 Decided August 27, 2008

1. The plaintiff's appeal is all dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the court of first instance is revoked. The defendants shall pay to each plaintiff 20,250,000 won with 5% interest per annum from December 12, 2003 to the service date of a copy of the application for modification of the lawsuit of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Facts of recognition;

A. The Plaintiff entered into a general telephone subscription contract with Defendant 1 Co., Ltd., and from around 1968 to 051-(the phone number 1 omitted) calls, at the same time, from around 1996 to 051-(the phone number 2 omitted) calls respectively. Defendant 2 was working as the head of the fare management team at the Seosan Branch Co., Ltd. from May 10, 2003 to June 30, 2007.

B. On May 25, 2001, the Plaintiff received KRW 190,000,000 excluding KRW 60,000,000,00,000, out of 2.5,000,000,000,000,000,000,000,00 won for the equipment cost

C. The Plaintiff paid the telephone fee by automatic transfer, which was before the introduction of the additional or partial withdrawal scheme from May 2001 to August 2001. However, from August 2001 to August 13, 2001, the Plaintiff’s automatic payment account (e.g., account number) balance of the Plaintiff’s National Bank of Korea on the 25th day of every month, which was the withdrawal date of the said subscription fee, was either zero won or less, and the telephone fee from May 2001 to August 2001 from August 13, 2001 to KRW 30,300 was not collected. Accordingly, Defendant 1 Co., Ltd ex officio in accordance with the Local Telephone Terms and Conditions on August 13, 201.

D. Meanwhile, the Plaintiff paid the phone call fee of 051-(C) to the same account. However, on the same ground as D/C, the Plaintiff delayed payment of KRW 26,820 from June 2003 to November 2003. Defendant 1 Company ex officio terminated the said phone call on September 24, 2003 on the ground of delinquency in payment of the charge in accordance with the Urban Telephone Use Clause.

E. Defendant 1 Co., Ltd. (hereinafter the above phone number 1 omitted) offset the facility cost of KRW 250,000 to be returned to the Plaintiff upon ex officio termination by telephone, against the unpaid user fee of telephone (hereinafter telephone number 2 omitted) by equal amount.

【Evidence of Evidence Nos. 2-4, 8, 4, 6, 11, 1, 2, 4, 5, 7, and 10 of the Evidence Nos. 2-4, 8, 4, 6, 11, 2, 4, 5, 7, and 10 of the first instance court and the defendant No. 2

2. Determination on the cause of the claim

A. The plaintiff's assertion

The Plaintiff’s balance on the date of automatic transfer by telephone was sufficient. Nevertheless, on December 12, 2003, the Defendants terminated the said telephone ex officio without any demand or notification due to the Plaintiff’s delinquency in payment of the said telephone fee, and the equipment cost of KRW 250,000 also committed an illegal act of offsetting the said telephone fee by fraud in 051- (hereinafter telephone number 2 omitted). As such, the Defendants, as damages for tort, are liable to compensate each Plaintiff for damages, for damages for the installation cost of telephone 051- ( telephone number 1 omitted), KRW 250,000,000, total sum of KRW 20,250,000, and damages for delay due to mental distress suffered by the Plaintiff.

B. Determination

With respect to the fact that the Plaintiff’s Defendants committed an illegal act, such as unfairly cancelling the phone call at an discretion, the Plaintiff’s statement Nos. 2-3, 5, 6, 9, and evidence Nos. 5-1 through 3 (the document stating the Plaintiff’s assertion, statement, etc.) submitted by the Plaintiff is not believed, but it is insufficient to acknowledge each statement of evidence Nos. 1, 2, 4, 7, 7, 8, 3, 4, 6, 7, and 7, and there is no other evidence to acknowledge the Plaintiff’s assertion. Rather, according to the facts of recognition described in paragraph (1), the Plaintiff’s claim for the instant claim is insufficient on the date of transfer of the phone call on the date of transfer of the phone call, and thus, it is not necessary to collect the phone fee on the same day without any justifiable reason. Furthermore, the Plaintiff’s claim for the instant case is not necessary to examine.

3. Conclusion

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

Judges Go Jong-ju (Presiding Judge)