Claim for adjustment in refund amount following termination of prepaid installment tourism product 게시글 상세보기 - 등록일, 조회수, 첨부파일, 상세내용, 이전글, 다음글 제공
Claim for adjustment in refund amount following termination of prepaid installment tourism product
Date
2020-05-25
Hit
702
The petitioner, along with three other persons, concluded a prepaid installment tourism product agreement with the respondent in 2015 (hereinafter referred to as the “Subject Agreement”) and later requested the termination of the Subject Agreement on June 4 2018 on the ground of the deterioration of the respondent’s business.
The terms and conditions of the agreement are as summarized below:
o Petitioner: Signed up for two accounts of tourism product OO1 on May 19 2015 (monthly installment 39,000 Korean won, 45 installments, total payment of 1,755,000 Korean won);
o Spouse: Signed up for two accounts of tourism product OO1 on May 19 2015 and one account of tourism product OOO2 on December 10 2015 (monthly installment 90,000 Korean won, 45 installments, total payment of 4,050,000 Korean won); and
o Two children: Respectively signed up for one account of tourism product OO1 in May 2015.
1.The petitioner(consumer)
The petitioner paid a total of 2,418,000 Korean won for the two accounts of product OO1, in 31 installments respectively; the petitioner’s spouse paid a total of 2,472,000 Korean won for the two accounts of product OO1 and the one account of product OOO2, in 19 and 11 installments respectively; and each of the two children paid a total of 1,248,000 Korean won for the one account of product OO1, in 16 installments.
2.The respondent(business operator)
Article 11, Paragraph 2 of the respondent’s terms and conditions stated “in the event of termination due to the member’s circumstances, the company shall return a surrender value, calculated using the following formula, after deducting solicitation commissions and other admin fees from the amount paid by the member, to the member within ten days from the date requested.” The surrender value calculation formula as per these terms and conditions is as follows:
Excerpted from the surrender value (rate) table on the website
Surrender value = (Service reserve - undepreciated solicitation commission) × 0.9(values less than 100 Korean won in amounts paid to be trimmed; 0 if negative surrender value)
▶ Service reserve = total amounts paid - total admin fees
▶ Undepreciated solicitation commission= {(length of total installments in months - length of installments paid in months + 1 / length of total installments in months} × solicitation commission(Solicitation commission being no greater than 15.2% (of the product price); admin fees being no greater than 10% (of the product price).60 if the length of total installments ≥ 60 months; 0 if negative solicitation commission)
The petitioner found the respondent’s contention to return an amount, which equals to only 23-55% of the amount paid no earlier than in two months, unfair and requested that an amount considered reasonable under relevant laws be immediately returned.
In response, the respondent contended that the petitioner had been informed of the details on surrender values in the terms and conditions at the time of concluding the Subject Agreement and had concluded the agreement in assent thereto, and that returning an amount not in pursuant to the terms and conditions would undermine equity with other customers, hence the returnable amount would be 2,177,132 Korean won out of the total payment of 6,138,000 Korean won and the return of the surrender value would unavoidably take two months or more due to unfavorable business conditions.
The Subject Agreement is considered a ‘prepaid installment agreement’ under Article 2(2)Na of the Installment Transactions Act. The petitioner was not be supplied goods, etc., under this Subject Agreement, hence entitled to terminate the Subject Agreement under Article 25(1) of the same Act. The parties had no disputes concerning the termination of the Subject Agreement, hence the Subject Agreement was lawfully terminated.
Although the respondent briefed the petitioner on the provision on surrender values in the terms and conditions under Article 23(1) and (2) of the Installment Transactions Act, Article 25(2) of the same Act provides that traders of prepaid installment transactions shall not charge customers cancellation charges in excess of losses incurred from cancellation in the event of agreement termination on customers’ request, and agreements that are not in compliance with the said provision and are unfavorable for customers shall be considered of no force under Article 43 of the same Act.
When comparing the surrender value of 2,177,132 Korean won as contended by the respondent and the estimated surrender value of 4,584,150 Korean won under the Criteria for Consumer Dispute Settlement and Article 4 of the Notification of Standards on the Calculation of Surrender Values Following the Cancellation of Prepaid Installment Agreements, the provision on surrender values in the respondent’s terms and conditions are deemed to charge consumers excessive cancellation charges, hence considerable grounds to be deemed invalid.
Taken together, the respondent shall return to the petitioner an amount of 4,584,150 Korean won no later than November 12 2018, and in the event that the respondent delays the payment, late-payment penalties at a rate of 15% per annum calculated from November 13 2018 to the date of full payment shall be added pursuant to Article 25(4) of the same Act and Article 7 of the Enforcement Decree of the same Act.
[Relevant laws and notifications] Article 2, Article 23, Article 25, and Article 43 of the Installment Transactions Act, Article 7 of the Enforcement Decree of the Installment Transactions Act, Article 9 of the Enforcement Decree of the Framework Act on Consumers, Article 22 of the Criteria for Consumer Dispute Settlement and Article 4 of the Notification of Standards on the Calculation of Surrender Values Following the Cancellation of Prepaid Installment Agreements.
[Calculation of surrender value pursuant to the Criteria for Consumer Dispute Settlement and the Notification of Standards on the Calculation of Surrender Values Following the Cancellation of Prepaid Installment Agreements]
o Product OO1
- Surrender value = total amounts paid - total admin fees - solicitation commission deductions
Total amounts paid: ① petitioner: 2,418,000 Korean won (39,000 Korean won × 31 months × 2 accounts) ② spouse: 1,482,000 Korean won (39,000 Korean won × 19 months × 2 accounts) ③ two children: 1,248,000 Korean won (39,000 Korean won × 16 months × 2 accounts)
Total admin fees: ① petitioner: 39,000 Korean won × 5% (maximum) × 31 months of installments × 2 accounts = 120,900 Korean won ② spouse: 39,000 Korean won × 5% (maximum) × 19 months of installments × 2 accounts = 74,100 Korean won ③ two children: 39,000 Korean won × 5%(maximum) × 16 months of installments × 2 accounts = 62,400 Korean won
Solicitation commission deductions: ① petitioner: {(solicitation commission* 175,500 Korean won × 0.75) + (175,500 Korean won × 0.25 × 31 months of installments / 45 months of total installments) × 2 accounts} = 323,700 Korean won ② spouse: {(solicitation commission 175,500 Korean won × 0.75) + (175,500 Korean won × 0.25 × 19 months of installments / 45 months of total installments) × 2 accounts} = 300,300 Korean won ③ two children: {(solicitation commission 175,500 Korean won × 0.75) + (175,500 Korean won × 0.25 × 16 months of installments / 45 months of total installments) × 2 accounts} = 294,450 Korean won
* Solicitation commission: Total contract amount 1,755,000 Korean won × 10% (maximum) = 175,500 Korean won
Surrender value: ① Petitioner: 1,973,400 Korean won (total amount paid 2,418,000 Korean won - total admin fees 120,900 Korean won - solicitation commission deductions 323,700 Korean won) ② spouse: 1,107,600 Korean won (total amount paid 1,482,000 Korean won - total admin fees 74,100 Korean won - solicitation commission deductions 300,300 Korean won) ③ two children: 891,150 Korean won (total amount paid 1,248,000 Korean won - total admin fees 62,400 Korean won - solicitation commission deductions 294,450 Korean won)
o Product OOO2 (spouse)
- Surrender value = total amounts paid - total admin fees - solicitation commission deductions
Total amounts paid: 990,000 Korean won (90,000 Korean won × 11 months)
Total admin fees: 90,000 Korean won × 5% (maximum) × 11 months of installments = 49,500 Korean won
Solicitation commission deductions: {(Solicitation commission* 405,000 Korean won × 0.75) + (405,000 Korean won × 0.25 × 11 months of installments / 45 months of total installments)} = 328,500 Korean won
* Solicitation commission: Total contract amount 4,050,000 Korean won × 10% (maximum) = 405,000 Korean won
Surrender value: 612,000 Korean won (total amount paid 990,000 Korean won - total admin fees 49,500 Korean won - solicitation commission deductions 328,500 Korean won)
Therefore, the decision has been made as stated above on the above-stated ruling ground.
