숙박공유 플랫폼 약관의 불공정성 - 에어비앤비(Airbnb) 이용약관을 중심으로 -

Abstract

The Fair Trade Commission determined that Airbnb's terms and conditions were unfair under the Terms and Conditions Control Act for 'strict refund clause' and 'charge refund clause'. ‘The strict refund clause’ was regarded as invalid in accordance with Article 8 of the Act on Regulation of Terms and Conditions, which is a type of 'scheduled damage compensation' that bears undue liability to customers. As for the "refund clause" that stipulates that the cancellation of accommodation reservation does not constitute a refund of the service fee, it was deemed invalid by Article 9 no.5 of the Act on the Regulation of Terms and Conditions, which unfairly mitigates the operator's obligation to restore its original status due to the termination of the contract. In relation to the applicability of the Agreement Control Act, consumers in Korea can enjoy the protection granted under the Korean imperative provision, even if they chose the law as the law of compliance for consumer contracts under private international law. The Airbnb Terms and Conditions apply to consumer contracts, so the Terms and Conditions Control Act may apply. Content control is mainly problematic among the three stages of control of inclusion, interpretation and content control in the terms and conditions of Airbnb when the Terms and Conditions Control Act is applied. Content control is basically based on the form of profit, and if there are voluntary law that apply to the same kind of contract or legal relationship, those provisions may be an important factor considered in the form of profit. In the case of a "strict refund clause," consumer dispute settlement criteria can be considered as a factor in the form of profit by comparison a "strict refund clause" imposes an excessive burden on consumers. Fee refund clause should also be regarded as an unfair clause because it denies the return of the fee uniformly without consideration of the part where Airbnb is exempted from obligation as the contract is cancelled before the date of use. Meanwhile, the EU Commission made a request for correction as it considers unfair matters concerning the judge of Airbnb's terms and conditions, the validity of the terms and conditions after the contract was signed, the unilateral revision of the terms and conditions, and the cancellation and validity of the contract. Although Airbnb partially reflected what it described as unfair in the EU Commission, it still uses a number of clauses that are feared to be unfair in the country, and efforts to revise them are needed.