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TITLE Supreme Court Decision 2017Da248803, 248810 Decided June 15, 2018 【Restitution of Unjust Enrichment, etc.】 * First draft [full Text]
Summary
[1] In a case where: (a) an information disclosure statement, prescribed under Article 2 subparag. 10 of the Fair Transactions in Franchise Business Act, includes clauses unfavorable to a franchisee; (b) and such clauses were either registered with the Fair Trade Commission and disclosed to the public or provided to a franchisee before the signing of the franchise agreement, whether it is possible to consider that the clauses (i) become a part of the franchise agreement by themselves; or (ii) are naturally incorporated into the franchise agreement without any separate arrangement (negative)
[2] Standard of determining whether there has been an implicit arrangement between a franchisor and a franchisee over the franchise agreement, which includes elements disadvantageous to a franchisee
[3] In a case where: (a) in a court decision, there is no indication of a specific and direct determination regarding facts alleged by the parties to a contract; (b) but it is possible to find out whether the allegation is recognized or not when put into perspective of the general idea of the reasoning of the judgment; (c) or, it is evident that the allegation will be dismissed even though the court did not actually render such judgment, whether there is omission in a judgment (negative)
[4] Whether Article 64 of the Commercial Act is applied or applied mutatis mutandis to not only a claim arisen from a commercial activity but also a claim equivalent thereto (affirmative)
[5] In a case where: (a) Franchisor A has claimed and received from franchisees, including Franchisee B, money in proportion to the sales revenue under the name of “SCM Adm” (Administration Fee) without contractual ground; and (b) Franchisee B filed a claim for reasonable reimbursement of the money, alleging that such payment of money constitutes unjust enrichment, the case holding that the statute of limitations for the aforementioned claim for return of unjust enrichment expires when it is not exercised for 5 years, according to Article 64 of the Commercial Act
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