디지털경제시대에서 상법총칙·상행위법의 적응

Abstract

This paper tries to examine a business or a legal system affected from the development of digital economy and to revise or newly construe the existing legal system of Commercial Law. It could be summarized as follows. ⋅The manager of online shopping mall should be classified as a merchant and the manager of open market-type online shopping mall should be classified as the same, inferring the merchant-nature from the lease. ⋅The concept of merchant should be revised on the basis of ‘the conduct of business in a merchant’s way’, not by the existing way of listing the basic commercial activities. ⋅The legal appearance through the internet web sight could establish the liability of apparent agent or apparent representative director, however, not the apparent manager because the web sight could’t qualified as a business office. ⋅The article 22 and 23 (4) as to the effect of registration of trade name should be revised because these could’t apply in cyberspace. ⋅The article 9 which does not apply to a petty merchant should be revised because he or she who manages the business office in reality or cyberspace wants to be dealt as a merchant. ⋅The registered matters should be made public notice in cyberspace for the purpose of coincident of public notice. ⋅The article 41 (1) as to the local prohibition of competitive of business of transferor should be revised in case of transferring internet-based business, because it could’t be applicable in cyberspace. ⋅The written form, demanded for various notice in transactions could be substitute for electronic document, therefore new provision should be acted in general provisions of civil act or commercial act. ⋅Electronic commerce should be acted as a basic commercial activity and its legal relation should be formed as one of equal parties.