2013Nu729 Revocation of a corrective order, disposition, etc. for a violation of the Act

A Stock Company

Fair Trade Commission

December 4, 2013

January 15, 2014

1. The Defendant’s action against the Plaintiff on August 13, 2012 regarding the cancellation refund money and delay compensation payment order for B, C, D, E, and F in the attached Form No. 1 of the corrective order issued by the Plaintiff on August 13, 2012 and the part regarding the cancellation refund payment order for G is dismissed.

2. The plaintiff's remaining claims are dismissed.

4. Of the costs of lawsuit, 3/4 is borne by the Plaintiff, 1/4 is borne by the Defendant.

The corrective order stated in the attached Form issued by the Defendant to the Plaintiff on August 13, 2012 shall be revoked.

1. Details of the disposition;

On August 13, 2012, the Defendant issued a corrective order to the Plaintiff on August 13, 2012, for the following reasons, to pay the cancellation refund and the compensation for delay to the cancellation cancellation (hereinafter referred to as the “instant corrective order”), and to prohibit the act of delaying or refusing the payment of the cancellation refund without justifiable grounds (hereinafter referred to as the “instant corrective order”).

A person shall be appointed.

【Reasons for Recognition】 Description of Evidence No. 1

2. Of the corrective order of Paragraph 1 of this case, the part regarding B, C, D, E, F and G (limited to refund for termination of contract)

According to the statement in Eul evidence No. 3, the defendant is acknowledged to have cancelled the cancellation refund money to B, C, D, E, and F among the corrective order of Paragraph 1 of this case on November 11, 2013, and the part of the order of payment for the cancellation refund to G and the part of the order of payment for the cancellation refund to G.

Therefore, the lawsuit on this part is unlawful as it seeks revocation of an administrative disposition without absence.

3. Among the corrective order of Paragraph 1 of this case, the part concerning the remainder of the rescission of contract (including the part concerning the compensation for delay of the G) and the part concerning Paragraph 2 of this case

A. Part on G (limited to damages for delay), H, and I

1) The plaintiff's assertion

This part of the corrective order is unlawful since the consumer dispute mediation committee or the court has paid the cancellation refund in accordance with the mediation decision, etc.

2) Determination

First, in light of the purport of the entire pleadings as to G, it is recognized that the Plaintiff paid KRW 1,453,00 for the cancellation refund of KRW 1,453,00 at the Busan Mediation Government and the compensation for delay for the cancellation thereof from April 19, 2012, and paid KRW 1,453,00 for G on June 28, 2012, and the compensation for delay was not paid for the cancellation refund of KRW 1,453,00 for G. Accordingly, the part of the Defendant’s corrective order ordering the payment of compensation for delay is lawful, and the Plaintiff’s assertion disputing this is unacceptable.

Next, the illegality of administrative disposition against H and I in the health department and administrative litigation shall be determined on the basis of the statutes and facts at the time when the administrative disposition was taken, and it shall not be affected by the amendment or repeal of the statutes or changes in the actual state after the disposition was taken (see Supreme Court Decision 2007Du3930, Jul. 24, 2008).

However, comprehensively taking account of the overall purport of the pleadings in the statement Nos. 6 and 8-1 and 2, the Plaintiff is recognized to have paid the cancellation refund, etc. to H and I only after August 31, 2012, which was after August 13, 2012 when the instant corrective order was issued, and December 31, 2012. Accordingly, the Plaintiff cannot assert the illegality of the instant corrective order on the ground of such payment. The Plaintiff’s assertion on this part is rejected.

B. Part as to J and K

The plaintiff asserts that since the current civil procedure is in progress against J and K, the corrective order for this part is unlawful.

However, the Plaintiff’s order to pay the cancellation refund, etc. to J and K was made between J and K on May 7, 2013, and between K, on February 27, 2013, respectively, by compulsory adjustment (the Busan District Court 2012Na21086) or by the ruling of recommending reconciliation (the Busan District Court 2012Na21086 case) and the final and conclusive judgment is significant in this Court. Accordingly, the Plaintiff’s assertion in this part cannot be accepted.

C. Parts on L, M, N,O, and P

The plaintiff asserts that under the terms and conditions of the commercial agreement, the member has a duty to keep receipts that have paid monthly installments, and that even if L, M, N,O, P (hereinafter referred to as "L, etc.") has paid monthly installments, he/she did not present a receipt. Therefore, he/she cannot accept the payment of monthly installments.

However, in full view of the purport of the argument in the statement in Eul evidence No. 2, L, etc. is recognized as having concluded a mutual aid agreement with the Plaintiff and paid all the amount indicated in the annexed sheet [Attachment] in the monthly installments as stipulated in the relevant contract. Moreover, as long as the monthly payment receipt is proved by other means, as long as L, etc. does not keep the monthly payment receipt in full, it cannot be deemed that the Plaintiff is exempted from the obligation to pay the cancellation refund for L, etc., even if the monthly payment receipt is proved by other means. This part of the Plaintiff’s assertion is rejected.

4. Conclusion

In the instant corrective order Paragraph 1, the cancellation refund money for B, C, D, E, and F, and the damages for delay for the cancellation refund payment order part against G is unlawful and dismissed. The Plaintiff’s remaining claims are dismissed for lack of justifiable grounds.

Judge Ahn-jin, Judge

Judges Noh Jeong-man

Judges Jeong Jae-ok

A person shall be appointed.