일본 민법개정시안에 있어서 소비자법의 위치

Abstract

Drafts for the revision of Civil Code recently published by two groups of influential scholars in Japan - Kato and Uchida- show that the Civil Code is somehow relevant with the consumer law. From the viewpoint of Korean law, the featuring elements may be summarized as the following. First, both the Kato's draft and the Uchida's discuss incorporating consumer law into the Civil Code with priority given to the "Consumer Contract Act". Kato's draft is trying not only to generalize the misrepresentation rule of Consumer Contract Act as general rule of Civil Code, but also to connect some part of consumer contract rule of the Consumer Contract Act (and the Specific Commercial Transaction Act) by putting the references in the Civil Code. The Uchida's draft is more positive in terms of trying to incorporate the overall rule of Consumer Contract Act into the Civil Code. As a result, the Civil Code will have special consumer contract rules as showing below. Secondly, both of the Kato's draft and the Uchida's is using the method of generalization of consumer private law. The subject-matters of generalization common in the two drafts are 'misrepresentation' and 'obligation to provide information'. The generalization of consumer private law is not to integrate each of the provisions into the Civil Code as special rules applying only to the consumer contract, but to incorporate the spirit of "Consumer Contract Act" or consumer private law in the more generalized form. Accordingly, the scope of application is not limited to consumer contract. Thirdly, Kato's draft and Uchida's propose very different types of incorporating ways about whether to put special rules of consumer private law in the Civil Code, and if so, what way should be chosen. While Kato's draft adopted the incorporating way to guarantee a point connected to consumer law by so-called putting the reference provisions in the Civil Code, Uchida's adopted the incorporating way to let the special rules of "Consumer Contract Act" (cancellation rights, the regulation of consumer contract provisions) maintain themselves by integrating them into the relevant parts of the Civil Code. These two ways of incorporation were the most controversial part in the process of drafting the revision of Civil Code regarding consumer law and the evaluations on them is now extremely divided. Thus, in the official drafting for the revision of Civil Code in Japan which will be in progress for a couple of years, it seems to be one of the biggest issues. Owing to the publication of the drafts with features as such, there have been the variety of models to refer for revision of Korean Civil Code. In particular, the ways of generalization and of reference are noticeable in that they are not found in the other legislations.