(영문) 서울고등법원 2013.10.31. 선고 2013누8556 판결

On January 17, 2013, the defendant revoked all corrective orders and publication orders in attached Form 1 as a resolution C against the plaintiff A Co., Ltd.

On January 17, 2013, the defendant revoked all of the corrective orders and publication orders in attached Form 2, which were made to Plaintiff B Co., Ltd. D by resolution.

Reasons

1. Basic facts

A. Status of the plaintiffs

Plaintiff A and B Co., Ltd. (hereinafter referred to as “A,” hereinafter referred to as “B”) are prepaid installment business operators under Article 2(4) of the Installment Transactions Act (hereinafter referred to as “Installment Transactions Act”) who engage in business of supplying goods, etc. at the same time or after payment by dividing the prices of services for funeral or wedding and other goods incidental thereto two times or more over a period of two months (hereinafter referred to as “prepaid installment contract”).

B. Plaintiffs’ act

(1) Plaintiff A

① On February 24, 2011, Plaintiff A registered a prepaid installment trading business with the Mayor of Busan, but revoked the registration on March 25, 201, and is currently conducting funeral events in the state of unregistered registration.

② On February 1, 2011, Plaintiff A entered into a membership acceptance agreement with E Co., Ltd. (hereinafter referred to as “E”) with respect to the delivery of 4,458 members among 11,58 members of Plaintiff A.

(2) Plaintiff B

① Since the commencement of the business on December 2004, Plaintiff B did not register the prepaid installment trading business with the Mayor/Do Governor having jurisdiction over the location of the principal office until then.

② On January 11, 2011, Plaintiff B entered into a membership acceptance agreement between Plaintiff B and E on the content that Plaintiff B transferred 87 of Plaintiff B’s 393 members to E (hereinafter “A’s membership acceptance agreement”).

C. The defendant's disposition

The defendant issued a corrective order and an order for publication (hereinafter referred to as the "disposition in this case") on the grounds that (1) the registration of installment business as of the date of deliberation was not made, and (2) the plaintiffs did not enter into a contract for indemnity insurance, etc. to compensate for advance payment to the members of each of the non-parties, by resolution, on the grounds that the legal relationship under the prepaid installment business is continued between the plaintiffs and the members who did not consent to the contract for acceptance of each of the members in this case.

[Grounds for recognition] A.1-2] Facts without dispute, each entry, the purport of the whole pleadings

2. Whether the instant disposition is lawful

(a) Related Acts and subordinate statutes;

Attached Table 3 is as shown in the list.

B. Violation of obligations under Articles 18(1) and 27(1) of the Installment Transactions Act

Comprehensively taking account of the above basic facts, Gap 1-3’s respective statements (including additional numbers) and the overall purport of the pleadings, there are members who did not consent to each of the instant member acceptance agreements with the plaintiffs at the time of the instant disposition, while it is not clear whether Eul has received advance payment from the aforementioned unregistered members in each member acceptance agreement, and it is not clear whether E has succeeded to the status of the prepaid installment business operator as prescribed in Article 22 of the Installment Transactions Act from the plaintiffs.

Therefore, the legal relationship between the plaintiffs and the above unregistered members should continue. It is reasonable to view that the plaintiffs bear the obligation to register prepaid installment business with the competent Mayor/Do Governor under Article 18(1) of the Installment Transactions Act and the obligation to enter into a consumer damage compensation insurance contract under Article 27(1).

However, the Plaintiffs did not register prepaid installment business until the time of the instant disposition, and did not perform the obligation to enter into a consumer damage compensation insurance contract, etc. (the Plaintiff A revoked the registration of prepaid installment business on March 25, 201, and the mutual aid agreement entered into with the FF mutual aid agreement on September 17, 2010 was terminated on March 18, 201).

C. Whether Article 27 (1) and (2) of the Installment Transactions Act are unconstitutional

(1) Plaintiffs’ assertion

The provisions of Article 27(1) and (2) of the Installment Transactions Act, which serve as the basis for the instant disposition, are unconstitutional for the following reasons, and thus, the instant disposition based on the said Act is unlawful.

(1) If the amended Act and subordinate statutes (wholly amended by Act No. 10141, Mar. 17, 2010; hereinafter referred to as the "amended Act and subordinate statutes") stipulate a superior business operator as a prepaid installment business operator and regulates him/her as a prepaid installment business operator, thereby introducing the obligation to register and to enter into a consumer damage compensation insurance contract, etc. for the purpose of preserving statutory advance payment), the amended Act and subordinate statutes are subordinate statutes that impose statutory advance payment obligation on a commercial service contract entered into prior to the enforcement of the amended Act and subordinate statutes.

However, in light of the comparison and balancing of the plaintiffs' trust protection interest (property protection interest) and the reasons for public interest that require retroactive effect on the existence of the pre-paid installment transaction business, which is subject to registration obligation under the Installment Transactions Act, or which does not stipulate the duty of deposit of advance payment for statutory preservation, the interests of protecting the plaintiffs' trust are superior to those of the pre-paid installment transaction business. Therefore, the pre-paid legislation (amended Acts and subordinate statutes) should not be allowed or its application should be limited.

② The legitimacy of the purpose of the provision on statutory advance payment under the Installment Transactions Act and the suitability of the means is recognized. However, it is against the minimum nature of the infringement and ultimately violates the principle of excessive prohibition to deposit the legal advance payment under a mutual aid service contract with the invalidated members upon the termination of the contract ex officio.

(3) On the other hand, a commercial operator who has entered into a deposit contract with a mutual aid association bears the duty to deposit money as stipulated in the Installment Transactions Act, while a commercial operator who has entered into a deposit contract with a mutual aid association issues a certificate of deposit with a mutual aid association on the more amount than the statutory advance payment deposited with a mutual aid association. In light of such reality, the statutory advance payment provisions discriminates against the commercial operator who has entered into a deposit contract with a mutual aid association without reasonable grounds.

(2) Facts of recognition

(1) On condition that a mutual aid company pays a certain amount of money for the purpose of providing services for events for family rites that may arise for many and unspecified persons in the future, the mutual aid company's operations came to develop into Busan-based area in 1982 as a service business that provides goods or services necessary for events for family rites in accordance with the terms and conditions of the contract and spread across the nation.

(2) Major profit sources of a mutual aid company shall be the operating profit of the fund excluding the expenses to be paid for an actual event at home out of the advance payment made by the member in advance, and operating profit of the fund excluding the expenses to be paid for an event at home and operating expenses (the amount of operating allowances, such as subscription allowances, etc.

③ Enforcement of the amended Act and subordinate statutes on September 18, 2010, regulate the mutual aid business as a prepaid installment transaction. It stipulated the obligation to enter into an insurance contract, etc. for consumer damage compensation, such as a deposit contract equivalent to a certain ratio of advance payment, to the Plaintiffs and the same mutual aid company. Accordingly, in this process, a mutual aid company centered on a mutual aid company short of funds, such as the Plaintiffs, is under restructuring, and a contract is made in a form different from the form of succession to the status of a prepaid installment business operator as stipulated in Article 22 of the Installment Transactions Act, such as a membership acceptance agreement between the Plaintiffs and E.

(4) As of June 2002, a mutual aid company is 307 members of the three hundred and fifty hundred and fifty thousand members of the company, and the amount of customer payment paid by a member to a mutual aid company is equivalent to two trillion won.

[Grounds for recognition] Gap 1-2's each entry and the purport of the whole argument

(3) Determination

Even in cases where the relevant statute is amended, barring any special provision, an administrative disposition is in principle based on the amended law that enters into force at the time of the disposition and the standards set thereon. Even in cases where the amended law provides for a more unfavorable legal effect than the previous one while being subject to the application of existing facts or legal relations, if such facts or legal relations are not concluded before the enforcement of the amended law, they cannot be deemed as a retroactive legislation prohibited under the Constitution. In relation to the application of such amended law, if the public trust in the existence of the statutes before the amendment is recognized to have more protected than the public interest demand for the application of the amended law, there is room to limit its application to protect such public trust (see, e.g., Supreme Court Decision 2001Du274, Oct. 12, 2001).

In full view of the following circumstances that can be known by the relevant laws, the facts of recognition, and the purport of the entire pleadings based on the relevant legal principles, the Plaintiffs’ assertion that the amended statutes are unconstitutional cannot be accepted.

(1) Article 3 of the Addenda to the amended Act and subordinate statutes provides that a person who falls under a prepaid installment business operator as at the time this Act enters into force shall register with him/her in accordance with the amended provisions of Article 18 within six months from the enforcement date of this Act (on September 18, 201) (on March 17, 2011), and Article 5 (1) of the Addenda provides that the amended provisions of Article 27 shall apply to advance payment received by a prepaid installment business operator under a prepaid installment contract concluded before this Act enters into force.

Before the enforcement of the above amendment, it was possible to relatively easily establish a superior company without any specific restriction, such as the minimum capital requirement (300 million won). Accordingly, a number of superior companies including small and medium-sized small and medium-sized companies, such as the plaintiffs, were established.

However, the mutual aid companies have operated autonomously to make profits on the basis of advance payment paid before being provided with goods for family rites, without any specific restrictions under the laws and regulations. In the process, the financial soundness has deteriorated in the process, and there has been a possibility that the mutual aid companies could not perform their mutual aid services due to dishonor, closure of business, etc. In addition, the mutual aid companies were likely to cause damage to consumers even before and after the conclusion of the contract, such as refusing to withdraw the subscription or terminate the contract, refusing to pay the cancellation refund money, or demanding excessive penalty.

Under this background, the amended legislation regulates commercial companies as prepaid installment business operators, imposes an obligation to register them with competent Mayors/Do Governors, and imposes an obligation to enter into a contract, etc. of consumer damage compensation insurance with a view to preserving advance received from consumers at the time of registration.

② As seen earlier, the Plaintiffs are obligated to enter into a registration obligation under the Installment Transactions Act and a consumer damage compensation insurance contract in relation to the remaining members.

Although the Plaintiffs were reliance on the existence of property rights to autonomously operate advance payments received from members without any regulation on the mutual aid operations, in light of the purport of the above amended legislation, such reliance cannot be said to be more protected in comparison with the demand of the public interest on the application of the amended legislation.

③ The evidence submitted by the Plaintiffs alone does not reveal how much the members of the Plaintiffs were terminated ex officio at the time of the instant disposition, and even if each invalidated member exists as alleged by the Plaintiffs, the need to preserve the statutory advance for the payment of refund under the Installment Transactions Act is not lost (In addition, according to each member acceptance contract with the Plaintiffs, the obligation to pay the cancellation refund to the early termination member seems to exist in the delivery company, barring special circumstances).

In addition, Article 5 (2) of the Addenda provides a transitional provision in the direction that with respect to a business operator who had been operating at the time of the enforcement of the Installment Transactions Act, the rate of advance payment shall gradually increase every year on a yearly basis based on the date of promulgation of this Act.

④ There is no evidence to acknowledge the circumstances pointed out by the Plaintiffs in violation of the principle of equality, and it is not included in the subject of protection of equal rights under the Constitution.

(d) Whether a statutory advance payment is double imposed;

(1) Plaintiffs’ assertion

As to the advance payment of members who did not express their intention to consent to each of the instant member acceptance contracts, the Defendant issued a corrective order on the premise that the delivery business operator and E, respectively, violated the obligation to conclude the consumer damage compensation insurance contract, thereby issuing a double corrective order against the same act.

(2) Determination

According to Gap's records, in concluding or maintaining a deposit contract under Article 27 (1) 3 of the Installment Transactions Act with respect to E on January 17, 2013, the defendant issued a corrective order to require submission of data such as advance payment to all members, including the members (excluding the members who do not consent to the member acceptance agreement), to the depository institution which entered into an advance payment contract, and to deposit the amount calculated accordingly.

In light of the aforementioned facts and the pertinent contents of each of the instant resolutions (no consent or disapproval shall be expressed on the membership acceptance agreement). In full view of the review of the following facts, it is clear that the corrective order against the Plaintiffs is premised on the fact that the obligation of the prepaid installment business operator to enter into a consumer damage compensation insurance contract for the members, who do not clearly express their consent to the membership acceptance agreement, is the delivery business entity, and thus, it is apparent that the Plaintiffs’ corrective order is based on the premise that the obligation to enter into a consumer damage compensation insurance contract for the members, who do not clearly express their consent to the membership acceptance agreement, is against the obligation of the Plaintiffs

(e) Whether the discretion is deviates or abused;

(1) Plaintiffs’ assertion

In light of the fact that 97 counterpart companies violated the statutory advance payment preservation ratio obligation, the fact that the investigation is conducted only against the plaintiffs among the 97 counterpart companies, the imposition of the duty to deposit statutory advance payment on the invalidated members is excessive, and the defendant or the mutual aid association, like each member acceptance agreement of this case, provides a system that accepts the members of the insolvent company on the premise of the spot payment compensation in addition to the method of returning 50% of the advance payment paid to the damaged members caused by the existing insolvent companies, such as the method of returning 50% of the advance payment to the compensation for the damaged members caused by the existing insolvent companies, the disposition of this case is unlawful by abusing

(2) Determination

In full view of the provisions of Article 39(1) and (2) of the Installment Transactions Act, since the Fair Trade Commission has discretion to order a prepaid installment business operator to take corrective measures against the violation of the Act, the imposition of corrective measures by the Fair Trade Commission against the violator of the Installment Transactions Act constitutes a discretionary act. However, if there are grounds such as misunderstanding of the fact that serves as the basis for the imposition of the penalty surcharge in exercising such discretion or violating the principle of proportionality and equality, it is illegal as a deviation or abuse of discretionary power.

However, in full view of the aforementioned circumstances, and the following circumstances recognized as the whole purport of the arguments, the instant disposition is deemed unlawful as it deviates from or abused discretion. The Plaintiffs’ assertion on this part is rejected.

① As seen earlier, the Plaintiffs’ property infringement infringed by the enforcement of the amended Act and subordinate statutes, rather than the Plaintiffs’ property infringement, impose an obligation to register with a prepaid installment business operator for the company, such as the Plaintiffs, as well as a request for public interest, which imposes an obligation to enter into consumer damage compensation insurance contract,

② The evidence submitted by the Plaintiffs alone does not reveal that only the Plaintiffs were the front investigation.Although a member becomes invalidated upon termination of his/her authority, the need to preserve statutory advance payment for the payment of refunds under the Installment Transactions Act is not lost, and it cannot be said that imposing an obligation to deposit the advance payment upon the invalidated member in light of the purport of the introduction of the statutory advance payment system and the deposit rate (50% of the advance payment by phase for five years).

(3) Article 27 (4) of the Installment Transactions Act provides that a mutual aid company may select four contracts (an insurance contract for consumer damage compensation, a debt guarantee contract with a financial institution, a deposit contract with a financial institution, a mutual aid contract with a mutual aid association established pursuant to Article 28 of the Act, and a mutual aid agreement with a mutual aid association established pursuant to Article 28) in order to compensate for advance. The Plaintiffs may fulfill their obligation to conclude a consumer damage

④ As alleged by the plaintiffs, even though the defendant et al. claimed a system in which the defendant et al. acquired the members of an insolvent company on the premise of spot compensation (the provision of aid and aid services) in the manner of compensation for damaged members arising from an insolvent company, such circumstance alone does not necessarily mean that the defendant expressed to the plaintiffs any public opinion that is trusted in relation to the disposition of this case (In addition, according to each member acceptance agreement of this case, it is interpreted that E et al., the acquiring company bears the burden of the commercial aid goods and aid services only for the members who agreed to the contract).

F. Sub-decision

Therefore, the instant disposition against the Plaintiffs premised on the violation of the duty under Articles 18(1) and 27(1) of the Installment Transactions Act is lawful.

3. Conclusion

Therefore, the plaintiffs' claims of this case are without merit, and all of them are dismissed. It is so decided as per Disposition.