Refund Claim for a Defective Smartphone 게시글 상세보기 - 등록일, 조회수, 첨부파일, 상세내용, 이전글, 다음글 제공
Refund Claim for a Defective Smartphone
Date
2022-02-11
Hit
1230
A. On May 5, 2020, the Petitioner entered into a contract(hereinafter “the contract herein”) with the Respondent through an online shopping mall(not a relevant party in this case) under which the Petitioner purchased a mobile phone(Product Name: Unused iPhone XS 64GB, Silver, hereinafter “the product herein”) at KRW 647,890, and made payment to the aforementioned online shopping mall.
B. On the purchase page, the Respondent indicated·advertised the product herein as follows:
“o This mobile phone was on display for less than 3 months.
o We carry only the original Apple products that are eligible for Apple-certified repairs.
o If there is an initial defect, the product is eligible for replacement within 30 days of the purchase(defect confirmation from Apple-authorized service providers necessary).”
C. On May 8, 2020, the Petitioner received the product herein and while using the product herein, signs of defects arose, such as no sound or static during phone calls(hereinafter “poor call quality”). Accordingly, on May 23, 2020, the Petitioner inquired the Respondent about measures to take to fix the problem.
D. During May 2020, the Petitioner inquired the mobile carrier about the poor call quality but was informed that no abnormality was observed. On June 23, 2020, the Petitioner visited the service center authorized by the manufacturer of the product herein(not a relevant party in this case, hereinafter “the manufacturer”) and asked for repair, but was informed that no problem was found in the product herein. Thus, the Petitioner initialized the product herein and continued to use it.
E. On September 16, 2020, the Petitioner asked the manufacturer for repair because the screen of the product herein did not respond to touch(hereinafter “unresponsive screen”). The manufacturer responded that the Petitioner would have to pay KRW 416,000 for the repair since the warranty for the product herein had expired.
F. The Petitioner requested the Respondent for a refund for the reason that the warranty for the product herein had expired. However, the Respondent refused the request thereof because 30 days had passed since the date of purchase.
G. It is confirmed that the date of initial purchase of the product herein is November 6, 2018. In light of following provisions regarding hardware warranty, the expiration date of the warranty for the product herein is estimated to be around November 5, 2019:
o Apple One (1) Year Limited Warranty (2018. 7. 12.~2019. 10. 9.)
- Warranty Coverage: Apple Korea Ltd. (“Apple”) warrants the Apple-branded iPhone, iPad, iPod or HomePod hardware product and accessories contained in the original packaging (“Apple Product”) against defects in materials and workmanship when used normally in accordance with Apple’s published guidelines for a period of ONE (1) YEAR from the date of original retail purchase by the end-user purchaser (“Warranty Period”)
o Apple Limited Warranty (2019. 9. 11.~Present)
- Warranty Coverage: Apple Korea Ltd. (“Apple”) warrants the Apple-branded iPhone, iPad, iPod or HomePod hardware product and accessories contained in the original packaging (“Apple Product”) against defects in materials and workmanship when used normally in accordance with Apple’s published guidelines for a period of TWO (2) YEARS from the date of original retail purchase by the end-user purchaser (“Warranty Period”)
A. The Petitioner
ㅇ The Petitioner experienced poor call quality since approximately two weeks after receiving the product herein, which continued even after initialization with assistance from the manufacturer. Further, since around September 2020, the product herein have had another issue of unresponsive screen. The manufacturer inspected the product herein and confirmed that the product herein is defective; however, the Petitioner had to pay for repair since the warranty had expired.
ㅇ The Petitioner purchased the product herein with an expectation that he/she would be able to receive free repair service for a considerable period of time since the Respondent had advertised that the product herein “was on display for less than 3 months.” However, the Petitioner contends that he/she suffered damage because the Respondent sold a secondhand item for which a considerable period of time had elapsed since the date of initial purchase, and therefore the Respondent must refund the purchase amount of the product herein.
B. The Respondent
ㅇ The Respondent explains that the product herein was on display for less than three months, and if the Petitioner found the product herein to be defective, he/she could have exchanged the product herein by submitting the defect confirmation of the manufacturer within 30 days from the date of purchase. However, the Petitioner is eligible for neither refund nor exchange since he/she raised an issue 4 months after the date of purchase.
A. Examination on seller’s liability for warranty against defect (Article 580, 「Civil Act」)
ㅇ Article 580 of the ‘Civil Act’ stipulates that if any defects exist in the subject matter of a sale, the provisions of Article 575(1) shall apply mutatis mutandis, and thus the buyer may claim damages. Under Article 581 of the same Act, the same provisions shall also apply mutatis mutandis even when the subject matter of a sale had been specified in kind, if any defects exist in the specified subject matter. Meanwhile, the buyer has the responsibility to prove that the subject matter of a sale is defective, and the existence of defects shall be judged based on whether the defects existed at the time when the contract herein was established. (Supreme Court Decision 98Da18506 Decided January 18, 2000)
ㅇ It is difficult to verify that the product herein was defective on May 5, 2020, when the contract herein was established. Rather, it is highly likely that symptoms of defects, such as poor call quality and unresponsive screen, arose while using the product herein after receiving it. Therefore, it is difficult to determine that the Respondent is liable for the damages under Article 580 of the ‘Civil Act,’ since the Petitioner failed to sufficiently prove that the product herein was defective at the time when the contract herein was established.
B. Examination on consumer’s right to cancel under the’ Act on the Consumer Protection in Electronic Commerce’
ㅇ Article 3 of the ‘Act on the Consumer Protection in Electronic Commerce’ stipulates that where the contents of the goods are different from what was indicated or advertised, the consumer may cancel the order within three months from the date of receiving the goods, or within 30 days from the date he/she knew or could have known such fact.
ㅇ The Petitioner received the product herein on May 8, 2020, and identified defects of the product herein after 4 months have passed since the date of receipt on September 16, 2020. Because the Petitioner then raised objection to the Respondent, it is clear from calculation that the prescribed period for cancellation under Article 3 of the ‘Act on the Consumer Protection in Electronic Commerce’ has expired. Accordingly, the Petitioner cannot cancel the order regardless of whether the content of the product herein is different from what was indicated or advertised as stipulated in the same Act. Therefore, it is difficult to admit that the Respondent should refund the purchase amount to the Petitioner.
C. Examination on obligation to compensate for damages in violation of the ‘Act on Fair Labeling and Advertising’
ㅇ Article 3(1) of the ‘Act on Fair Labeling and Advertising’ stipulates that no business entity, etc. shall place false or exaggerated labeling or advertising that is likely to undermine fair trade order by deceiving or misleading consumers, or compel other business entities to do so. ‘Enforcement Decree of the Act on Fair Labeling and Advertising’ defines ‘false or exaggerated labeling or advertising’ shall be to label or advertise falsely, or by the way of inflating facts, which encompasses labeling or advertising that that may hinder fair trading order by misleading the consumer(Supreme Court Decision 2019Du31815 decided on October 17, 2019). Whether the labeling or advertising is misleading shall be judged objectively based on the overall and ultimate impression that consumers with common sense may receive from the advertisement (Supreme Court Decision 2013Da22553 decided on November 14, 2013).
ㅇ The Respondent indicated the condition of the product herein to be ‘mint,’ which distinguishes it from other secondhand products, and also used expressions such as ‘was on display for less than 3 months,’ ‘eligible for Apple-certified repairs,’ ‘if there is an initial defect, the product is eligible for replacement within 30 days of the purchase. (defect confirmation from Apple-authorized service providers necessary)’
ㅇ Based on the overall and ultimate impression that ordinary consumers with common sense may receive from the above advertisement, the advertisement is considered misleading, since it seems as if the product herein is used only for the purpose of display and therefore is equivalent to a new product or at least has substantial period of time left for free repair(a 2-year-warranty).
ㅇ However, the warranty period had already expired for the product herein since its initial purchase was made on November 6, 2018. Thus, it is considered that the above advertisement falls under false or exaggerated advertisement that may mislead consumers into thinking that the warranty on the product herein is yet to expire, and thus eligible for free repair.
ㅇ The labeling and advertising for the product herein is considered unfair for violating Article 3(1) of the ‘Act on Fair Labeling and Advertising.’ Due to the Respondent’s unfair advertising, the Petitioner failed to make full use of the product herein and suffered damages from poor call quality and unresponsive screen. Therefore, the Respondent shall be obligated to compensate the damages the Petitioner suffered, in accordance with Article 10(1) of the ‘Act on Fair Labeling and Advertising’ and Article 750 of the ‘Civil Act.’
D. Calculating the amount of damages
ㅇ In a claim for damages due to false or exaggerated advertisement under Aricle 10(1) of the ‘Act on Fair Labeling and Advertising’ and Article 750 of the ‘Civil Act’, the amount of damages shall be calculated based on the difference between the actual price of the product herein and the reasonable price of the product herein if it had not been falsely advertised(Supreme Court Judgment 2012Da15336 decided on July 23,2015). However, it is practically impossible to estimate the reasonable price of the product herein under the assumption that it had not been falsely advertised. Thus, the amount of damages shall be calculated based on the repair cost notified by the manufacturer, which amounts to KRW 416,000.
ㅇ Meanwhile, since a claim for damages due to unlawful act under Article 750 of the ‘Civil Act’ adapts mutatis mutandis Article 396 of the same Act, the court shall take into account any negligence on the part of the obligee in regard to non-performance of the obligation in determining the liability for and assessing the amount of the damages. However, the advertisement placed by the Respondent in this case is unlawful. If contributory negligence is recognized, the Petitioner would bear a part of the damage he/she suffered, thus letting the Respondent benefit from the unlawful act. Therefore, contributory negligence shall not be recognized since it would defy a notion of fairness.
ㅇ Claiming reduction of liability based on the negligence of the obligee shall not be admitted since it defies a notion of fairness or the principle of trust and good faith by allowing obligor to benefit from his/her unlawful act. Nonetheless, contributory negligence may still be recognized if it does not result in the obligor’s advantage(Supreme Court Decision 2006Da16778, 16765, etc. decided on October 25, 2007).
ㅇ In light of the above principles, the amount of damages shall be calculated based on the repair cost. Also, taking Petitioner’s negligence into account when calculating the amount of damages seem to correspond to the principle of equity, since it is difficult to determine that the Respondent took additional financial advantage by committing an unlawful act. Meanwhile, the Petitioner could have realized that the warranty had expired if he/she paid closer attention to the fact that the product herein had been released a considerable time ago. Therefore, the amount of damages shall be estimated to be KRW 291,000(excluding the amount less than KRW 1,000), 70% of the repair cost.
1. The Respondent shall pay KRW 291,000 to the Petitioner by May 7, 2021.
2. If the Respondent delays payment under Paragraph 1, an interest rate of 6% per annum shall accrue against the unpaid balance from May 8, 2021 until the date of full payment.
