Claim for adjustment in refunds for quasi-investment advisory services charging excessive cancellation charges 게시글 상세보기 - 등록일, 조회수, 첨부파일, 상세내용, 이전글, 다음글 제공
Claim for adjustment in refunds for quasi-investment advisory services charging excessive cancellation charges
Date
2020-07-16
Hit
1545
The petitioner concluded a stock information service contract with the respondent on April 9 2019 and paid KRW 4,900,000 and an additional KRW 700,000 on May 8 that year, used the service, and requested termination and refunds on May 15 that year. However, the respondent claimed that KRW 4,900,000 would be fully deducted as the first month’s fees and only KRW 466,669 would be refundable, after the cancellation charges and service charges from KRW 700,000 paid for service extension.
1.The Petitioner
Petitioner (consumer) contended that he concluded the contract as he was told from the respondent at the time of concluding the contract that he would be able to keep using the respondent’s service by paying KRW 4,900,000 in the first month and KRW 700,000 monthly thereafter and he would not have signed the contract if he had known that the KRW 4,900,000 would be deducted as the first month’s charges, and returning only KRW 466,669 for the 37-day service would be unfair, hence claiming additional refunds.
2.The Respondent(business)
The respondent contended that the KRW 4,900,000 the petitioner paid on April 9 2019 was monthly service fees for the 00000 service, which ended on May 8 that year hence not refundable, and the petitioner additionally paid KRW 700,000 for membership extension for the same product on May 9 that year, used the service and claimed termination and refunds on May 15 that year, therefore it would be reasonable to return KRW 466,669 after deducting the cancellation charges (10%) and service charges from the KRW 700,000 pursuant to the refund policy in the terms and conditions the petitioner read and agreed with at the time of conclusion.
A. Facts
1) Contract
o Contractor: 000
o Product: 00000
o Initial agreement
- Contract date: April 8 2019
- Contract amount: KRW 4,900,000 (paid in cash)
- Service period: April 9 2019 ？ May 8 2019
o Extension agreement
- Contract date: May 8 2019
- Contract amount: KRW 700,000 (paid in cash)
- Service period: May 9 2019 ？ June 7 2019
o Service period: 37 days (April 8 2019 ？ May 15 2019)
2) Development
o April 8 2019: The petitioner signed up for the respondent’s 00000 service and paid KRW 4,900,000.
o May 8 2019: The petitioner extended the respondent’s 00000 service and paid KRW 700,000.
o May 15 2019: The petitioner asked the respondent for termination and refunds.
3) Provisions in the contract with the respondent
o In relation to the April 8 2019 contract
- Order type: New
- Service title: 00000
- Service period: April 9 2019 ？ May 8 2019
- Total amount paid: KRW 4,900,000
o In relation to the May 8 2019 contract
- Order type: Extension
- Service title: 00000
- Service period: May 9 2019 ？ June 7 2019
- Total amount paid: KRW 700,000
* I have read and understood the order/payment details for the above-stated service and the refund policy and instructions in the following page from the order page on the company’s website and confirm by consent thereto by affixing my signature hereto.
4) Terms and conditions by the respondent
o Refund policy
Calculation of surrender value: amount paid - [(daily service charge x number of days used) + refund fees (10% of the total service charges)]
* Daily service charge: amount paid / total service period (30 days a month)
o Information on additional service provision
As notified in Paragraph 1, Article 15 of the terms and conditions, the following information constitutes a ‘digital content’ product of which subscription is irrevocable, and service charges for which will be fully deducted if refunding:
- Buy surge condition search formula set KRW 500,000
- 40 educational materials KRW 500,000
- 60 theme stock selection KRW 300,000
B. Relevant laws and regulations
1) Regulation of Terms and Conditions Act
o Article 3 (Obligation, etc. to Prepare and Explain Terms and Conditions)
③ A business person shall explain important details provided in the terms and conditions of a contract so that customers can understand them: Provided, That this shall not apply where it is considerably difficult to explain them due to the nature of the contract.
④ If a business person enters into a contract, in violation of paragraphs (2) and (3), he or she may not claim that the relevant terms and conditions constitute the content of the contact.
o Article 9 (Cancellation or Termination of Contract)
A clause in terms and conditions concerning the cancellation or termination of a contract which falls under any of the following subparagraphs shall be null and void.
4. A clause which, without a substantial reason, obligates customers to pay excessive restitution due to cancellation or termination of a contract, or which unreasonably provides for customers to waive their claim to restitution.
5. A clause which unreasonably reduces the restitution obligation of a business person or his or her duty to pay indemnity in the event of cancelling or terminating a contract.
2) Act on Door-to-Door Sales, Etc.
o Article 2 (Definition)
The terms used in this Act shall be defined as follows:
10. The term "recurring transactions" means transactions made under a contract for providing goods or services continuously or on an irregular basis during not less than one month with an agreement that places restrictions on the refund of the consideration therefor or that requires the payment of a penalty if the contract is terminated prematurely;
o Article 31 (Termination of Contracts)
A consumer who signed a contract for recurring transactions or transactions for soliciting business with a recurring or business-soliciting transaction business entity may terminate the contract at any time during the contract period: Provided, That the foregoing shall not apply where any other Act provides otherwise or where specified by Presidential Decree for security in transactions.
o Article 32 (Effects of Termination or Cancellation of Contract, Penalty, etc.)
① Where a contract for recurring transactions or transactions for soliciting business is terminated or cancelled due to a cause not attributable to a recurring or business-soliciting transaction business entity, the business entity shall not claim the consumer to pay a penalty significantly exceeding the loss incurred by the termination or cancellation and shall not unduly refuse to refund the proceeds received as an admission fee or other fees regardless of its names in excess of the price for goods or services actually supplied.
③ Where a contract for recurring transactions or transactions for soliciting business is terminated or cancelled due to a cause for which a recurring or business-soliciting transaction business entity is not responsible, and the proceeds received from the consumer for goods or services (including the refundable amount, if goods or services have been returned) are greater than the aggregate of the proceeds for goods or services already provided and the penalty, the recurring or business-soliciting transaction business entity shall refund the difference to the consumer. If a business entity delays the refund, he/she shall pay the late payment penalty for the period of delay specified by Ordinance of the Prime Minister, along with the refundable amount.
o Article 52 (Prohibition of Contract Unfavorable to Consumers, etc.)
Any contract which violates any provision of Articles 7 through 10, 16 through 19, or 30 through 32, which is unfavorable to consumers, shall be void.
3) Enforcement Decree of the Act on Door-to-Door Sales, Etc.
Article 13 (Interest Rate of Late Payment Penalty) The interest rate prescribed by Presidential Decree" in the latter part of Article 9 (2) of the Act means 15/100 per annum.
4) Framework Act on Consumers
Article 16 (Settlement of Consumer Disputes) ② The State may lay down the criteria for the settlement of consumer disputes as determined by the Presidential Decree, for the purpose of settling smoothly disputes which may arise between consumers and enterprisers.
③ The criteria for the settlement of consumer disputes as referred to in paragraph (2) shall be the criteria for any agreement or recommendation on the settlement of disputes, unless there is any separate manifestation as to the method of dispute settlement between the parties in dispute.
5) Enforcement Decree of the Framework Act on Consumers
Article 9 (Application of Criteria for Settlement of Consumer Disputes)
② In case that the dispute settlement criteria for the items in question are not prescribed in the criteria for the settlement of consumer disputes by items, the dispute settlement criteria for the similar items as prescribed by the criteria for the settlement of consumer disputes by items may be applicable mutatis mutandis.
6) Surrender value calculation pursuant to the Consumer Dispute Settlement Standards (Internet Content Business, Fair Trade Commission Notification No. 2019-3)
o If a consumer requests termination of a recurring transaction contract that lasts for one month or longer
- Refunds after deducing amounts corresponding to the number of days of use until termination and 10% of the remaining amount.
C. Liability and scope
The contract that is the subject of this case constitutes a recurring transaction under Article 2(10) of the Act on Door-to-Door Sales, Etc., Under Article 31 of the Act, the petitioner has the right to terminate the contract at any time during the contract term and expressed his intention to terminate the contract on May 15 2019, hence it should be considered that the contract was terminated that day.
However, the respondent contended that the first month’s service charges were KRW 4,900,000 and KRW 700,000 as monthly service extension charges thereafter, and surrender values should be calculated based on the KRW 700,000 for the remaining service period, and that the petitioner was told that once he pays KRW 4,900,000 for the first month, he would be able to extend the contract by paying KRW 700,000 a month thereafter, hence understood that the membership fees were included the KRW 4,900,000 and the monthly service charges were KRW 700,000.
In this regard, the respondent is required to give the petitioner explanations about important provisions in the terms and conditions to the petitioner’s understanding under Article 3(3) of the Regulation of Terms and Conditions Act, but the petitioner contended that he was not told from the respondent that the entire KRW 4,900,000 would be deducted as the first month’s service fees in the event of termination and he would not have concluded the contract by paying KRW 4,900,000 for the first month if the respondent had told him about this, and the respondent did not present evidence that it had given the petitioner sufficient explanations in such regard. Therefore, under Article 3(4) of the same Act, it should not be considered that the business’ contention was duly incorporated in the provisions in the contract.
Even if the business had gave explanations about such terms and conditions and these provisions could be recognized as contract provisions, a contract that would charge drastically different service charges for the same service for the same period, KRW 4,900,000 and KRW 700,000 would be considered unreasonable. If the respondent’s terms and conditions were to be construed in a way to deduct KRW 4,900,000 as the first month’s service charges, such a provision would result in charging the consumer cancellation charges in excess of losses arising from the termination of the contract and duly easing the business’ make-whole obligation in the event of contract termination or cancellation, hence invalid under Article 9(4) of the Act on the Regulation of Terms and Conditions and Article 52 of the Act on Door-to-Door Sales, Etc. Therefore, it is reasonable to consider the monthly service charges under the contract to be KRW 700,000.
Taken together, it is reasonable that, pursuant to the Standards on the Consumer Dispute Settlement developed for amicable dispute settlement under Article 16(2) and 16(3) of the Framework Act on Consumers, the respondent pay the petitioner KRW 4,263,000, after deducing KRW 863,333 as service charges and KRW 473,667 as cancellation charges from the total service charges of KRW 5,600,000 (rounded off to ten thousands place).
The respondent shall pay the petitioner 4,263,000 Korean won no later than October 14 2019. In the event that the respondent delays the payment, late-payment penalties at a rate of 15% per annum calculated from October 15 2019 to the date of full payment shall be added.
※ Surrender value calculation pursuant to the Consumer Dispute Settlement Standards (Internet Content Business)
o Surrender value (=A-B-C): KRW 4,263,000 (rounded off to ten thousands place)
o Amount paid for the service (A): KRW 5,600,000
o Service charges (B): KRW 863,000 (= 37 days x KRW 23,333)
* Daily service charge: KRW 23,333 (KRW 700,000/30 days, rounded off to first place)
o Cancellation charges (C): KRW 473,667 {10% of remaining amount, (A-B)×10%}
Therefore, the decision has been made as stated above on the above-stated ruling ground.
