소비자법 민법전편입의 이론적 근거와 방향성 - 실질적 사적자치론 · 소비자계약론의 관점에서 -

Abstract

The application of Civil Code to consumer transactions means that civil code will regulate the type of transaction (BtoC) the modern civil code did not envisage. However, it is a type of transaction which the civil code as a general private law should have included. If so, it can be justified that the legal representation of consumer transactions, "consumer contract" may be governed by the Civil Code. The issue is whether or not the Civil Code can embrace individual consumer protection laws which have developed outside the scope of the civil law. Because the consumer protection law is for the purpose of the consumer protection, it would be possible to conflict with the idea of the civil law which has its origin in the private autonomy. On the assumption that the structural characteristics of consumers and consumer contracts induce the necessity of the consumer protection, this article tries to justify the theoretical basis for the incorporation of the consumer contract law into the Civill Code through the theory of substantial private autonomy. In short, as long as the private autonomy of the civil law is understood the substantial private autonomy, it can be justified that the legal rules to accomplish the substantial private autonomy of the consumers is incorporated into the Civil Code. In the meanwhile, regarding what principle or rule will be necessary to accomplish the substantial private autonomy, this article will comparatively study the contract law principles between in consumer contract law and in civil law. Also, through the comparison study, it will try to induce the legal principle of the consumer contract which our legal system doesn't have. Legal principles or rules for regulating the process of and the content of the consumer contract play a role in protecting the consumers (or parties) in the contract process by using the civil law principle or by influencing the doctrine or the application of civil law. What makes these two parties connect is the very theory of substantial private autonomy. In sum civil lfound that the legal principles or rules for regulating the process of and the content of the consumer contract harmonizes with the theory of the civil law within the limits for helping to realize the substantial private autonomy by self-determination of consumers. The theoretical basis and the direction for the purpose of the incorporation of the consumer law into the Civil Code should be understood in this way.