게임 아이템 구매계약의 취소와 부당이득반환 - 대법원 2024. 11. 28. 선고 2023다216883 판결 -

The Supreme Court Decision 2023Da216883, decided in November 28, 2024, holds significance as the first case in which a consumer who purchased probability-based items brought a lawsuit claiming cancellation of the purchase contract on the grounds of fraudulent misrepresentation, alleging that the game company failed to disclose part of the probability information, and the claim was partially upheld. While the conclusion of the decision is, to some extent, acceptable, there appear to be certain logical leaps in the reasoning process, and some issues remain unaddressed; this paper seeks to examine those aspects. First, with respect to the establishment of a claim for restitution of unjust enrichment in this case, the paper examines whether the requirements of “gain” and “loss” are respectively satisfied. And, regarding the application of the doctrine of partial rescission, it is questionable whether the requirement of unity (oneness of transaction) is met, since the acts of purchasing the items are temporally separate and do not appear to be interdependent. Additionally, for the game items to be returned by the plaintiff, the requirement of divisibility must also be satisfied. However, in practice, it is difficult to identify and return only a portion of probability-based items, suggesting that the requirement of divisibility is not met in this case. Furthermore, if such a claim for restitution is recognized, the method and scope of restitution become problematic. The types of game items can be categorized into four groups, and depending on the type, various methods may be considered—for example, the game company directly retrieving the items from the user’s account or the user deleting the items themselves. Moreover, if the case is one where the game company’s “right of retrieval” (rather than the recipient’s duty of restitution) is recognized, it would be difficult to grant a right of simultaneous performance defense. Conversely, if the game user is in a position to delete the items independently, the game company may refuse to refund the purchase price on the ground that the items have not been destroyed. Meanwhile, where the game company has received not cash but in-game currency or items under the contract, it would, in principle, be proper to return the items themselves upon rescission. However, in exceptional cases such as rescission of a contract induced by fraudulent misrepresentation by the game company, it may be more desirable, as a matter of policy, to require restitution in value rather than restitution in kind.