Demand for return of contract amount associated with the non-attainment of accumulated profit rate in quasi-investment advisory service 게시글 상세보기 - 등록일, 조회수, 첨부파일, 상세내용, 이전글, 다음글 제공
Demand for return of contract amount associated with the non-attainment of accumulated profit rate in quasi-investment advisory service
Date
2021-06-15
Hit
701
A. On January 17, 2019, the Petitioner signed a quasi-investment advisory agreement (“the AGREEMENT”) with the Respondent. The AGREEMENT stipulates that, if the accumulated profit rate fails to reach 500% by the end of the agreement period, the Respondent shall return the entire AGREEMENT amount to the Petitioner after a 10% deduction. Gist of the AGREEMENT: product description: xxxx; agreement period: 1/18/2019 ？ 2/18/2020 (13 months); AGREEMENT amount: 5,200,000 won
B. On November 26, 2019, the Petitioner asked the Respondent for the early termination of the AGREEMENT and return of the AGREEMENT amount. The Respondent said to wait as it was ready to return 90% of the AGREEMENT amount if the accumulated profit rate fails to reach 500% by the end of the AGREEMENT period. Thus, the Petitioner withdrew its request for early termination.
C. On February 19, 2020, the Petitioner asked the Respondent to return 90% of the AGREEMENT amount, saying that an accumulated profit rate of 500% was not attained, but the Respondent rejected the request, saying that said accumulated profit rate was attained.
D. The following are the major contents of the advertisement in the Respondent’s homepage regarding the profit rate in question:
ㅇ We attained accumulated profit rate of 3,751.35% for VIP items in 2019!
ㅇ Official certification for ascertaining facts about VIP recommended items
ㅇ Attaining accumulated profit rate of 3,751%
ㅇ Letter of confirmation of notarized facts received from a lawyer (contents omitted)
E. The following are the major contents of the Terms and Conditions concerning termination of the AGREEMENT:
ㅇ Article 23 (Termination and refund upon user’s request)
⑦ We will return 90% of the AGREEMENT amount paid upon a user’s request, which should be made within 3 days of the agreement termination, if the accumulated profit rate of 500% has not been attained, where the user has fulfilled the entire AGREEMENT from the date of service subscription to the date of service termination (fee-based period + free period) without asking for refund or holding during the AGREEMENT period. The judgment on accumulated profit rate is to be made based on the total accumulated profit rate concerning the items for which we gave you a sign to buy/sell during the AGREEMENT period. Where the user has asked for refund or holding during the AGREEMENT period, the refund amount is to be calculated as per Paragraph 6, Article 23 (Termination and refund upon user’s request).
A. According to the Petitioner
ㅇ The Respondent’s method of calculation of accumulated profit rate is not right, as it applies only to items for which it gives the sign to buy. It does not include partial selling of the same item in the calculation of average profit rate. We/I invested using the information provided by the Respondent but failed to attain the promised accumulated profit rate. Thus, the Respondent should return 90% of the AGREEMENT amount as per what is stipulated in the AGREEMENT.
B. According to the Respondent
ㅇ We have nothing to return to the Petitioner, as it has been ascertained that an accumulated profit rate of 839.56% has been attained for the items we recommended, but we cannot provide evidentiary materials as it will mean disclosing our business secrets and investment-related information.
First of all, Article 23(7) of the relevant Terms and Conditions states that “If the accumulated profit rate fails to reach 500% by the end of the agreement period, we will return the entire agreement amount to the Petitioner after a 10% deduction. The judgment on accumulated profit rate is to be made based on the total accumulated profit rate concerning the items for which we give you a sign to buy/sell during the agreement period.” However, the method of calculation of accumulated profit rate is not stated clearly anywhere.
In general, “profit rate” refers to the ratio of profits to the capital advanced, i.e., margin of profit that can be earned with a certain amount of capital. In light of this definition, it is reasonable to view “profit rate” in the AGREEMENT as the rate of total profit earned with the invested capital.
The Parties have different views as to whether the profit rate of 500% has been attained. The Respondent says that an accumulated profit rate of 500% has been attained, yet fails to provide evidentiary materials. Its method of calculation of profit rate as partially disclosed appears to be something that is difficult to recognize as it does not correspond to the usual method of profit rate calculation. The simple addition of profit rate of items sold without considering the investment ratio (1~15%) is an example of “not corresponding to the usual method of profit rate calculation.” On the other hand, it appears that the Petitioner did not buy or sell all the items recommended by the Respondent, which makes it difficult to judge whether an accumulated profit rate of 500% has been attained.
However, the Respondent engaged in PR in a false or exaggerated way, saying as if considerable profit rate can be attained by stating “a letter of confirmation of notarized facts received from a lawyer” or “a refund of 90% of the entire amount paid in case of non-attainment of 500% profit rate” in its homepage. It also appears that the Respondent misled the Petitioner by saying that the amount returned is less in case of early termination (than what would be by the scheduled termination date), that a profit rate of 500% or more could surely be attained or 90% of the total agreement amount would be returned by the scheduled termination date in response to the Petitioner’s request for early termination and refund on November 26, 2019 due to low profit rate.
After all, the Petitioner withdrew its intention to terminate the AGREEMENT early following such misleading act by the Respondent. It appears that a profit rate of 500% was not attained in light of the profit rate calculated by the Petitioner or ordinary concept of profit rate, but the Respondent refused to return 90% of the money paid based on its internal calculation methods, and it also refuses to disclose the details thereof. Thus, it is judged that the Petitioner suffered loss due to the Respondent, so the Respondent is responsible for compensating for the loss incurred by the Petitioner.
However, the following facts should be considered concerning this case: the Petitioner should have been more careful in decision making regarding the Respondent’s advertisement concerning high-profit investment; it is impossible to make an accurate prediction, which is one of the features of stock investment; the Petitioner should accept a considerable risk in stock investment; it is difficult to calculate accurately the profit/loss rate concerning the investment associated with the AGREEMENT with the Petitioner not having followed the Respondent’s recommendation about buying/selling completely as stated in the foregoing. It is thought to be reasonable to decide that the Respondent return 3,120,000 won, i.e., 60% of the AGREEMENT amount, to the Petitioner considering the guiding principle of the loss compensation system focusing on even and reasonable sharing of loss and the purpose of arbitration pointing to amicable and final resolution through mutual concession.
The Respondent shall pay a sum of 3,120,000 won to the Petitioner by April 26, 2021. In the event of a delay in payment of the sum by the Respondent, the Respondent shall pay delay penalty concerning the amount unpaid at the rate of 6% per annum pursuant to Article 54 of the Commercial Act beginning April 27, 2021 until the full payment in addition to the principal.
