소비자계약법상의 정보제공의무와 그 실효성에 관한 비판적 고찰
A Critical Research on Mandatory Disclosure Rule under Consumer Contract Laws and Its Efficiency
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Generally speaking, traditional approaches have depicted consumers as economically weak persons for many reasons. It is said that because of the disparity of information and unequal bargaining power between businesses and consumers, many terms unfavorable to consumers. Especially, the use of standard form contracts in consumer contracts tends frequently to lead to market failures because such contract are presented by a take-it-or-leave-it basis. The market failure has been referred to as the most common justification for legislative interventions in consumer markets. Thus, many consumer laws in Korea provide that businesses present consumers with information. Many mandatory disclosure is based on the idea that if consumers are given full and accurate information regarding the transactions into which they enter, the marketplace will function more efficiently. If they work well as expected, mandatory disclosures can ameliorate market failures without additional regulation of consumer market or judicial intervention. However, as consumers’ contracting behavioral researchers have argued, it is very unclear that such mandatory disclosure regulation would achieve its objective. Because of consumers’ various biases as behavioral insights indicate, they have inherently some limitation to achieve its objective. Despite these shortcomings of mandatory disclosure, however, mandatory disclosure regulation is inexpensive tool to regulate consumer markets and is the minimum requirement to legitimate consumer assent to standard form terms. Thus, this paper agrees that generally the starting point for regulation of standard form contracts should be mandatory disclosure. With respect to mandatory disclosure, what is more important is to make it more effective, but we cannot expect individual consumers to play such roles. Therefore, this paper emphasized the importance of consumer organizations’ role in preserving competition in the consumer market. consumer organizations provide consumers with information and advice by reviewing and comparing businesses’ items and contract terms. Especially, the Internet is a powerful and inexpensive tool in exchanging and spreading useful information between consumer organization and consumers. Consumers will be able to protect themselves by investigating the reputation of businesses and selecting only those with good reputations. In sum, if consumer organizations work well as expected, they can generate market pressure against businesses, and therefore mandatory disclosure regulations will be of value.
Abstract
Generally speaking, traditional approaches have depicted consumers as economically weak persons for many reasons. It is said that because of the disparity of information and unequal bargaining power between businesses and consumers, many terms unfavorable to consumers. Especially, the use of standard form contracts in consumer contracts tends frequently to lead to market failures because such contract are presented by a take-it-or-leave-it basis. The market failure has been referred to as the most common justification for legislative interventions in consumer markets. Thus, many consumer laws in Korea provide that businesses present consumers with information. Many mandatory disclosure is based on the idea that if consumers are given full and accurate information regarding the transactions into which they enter, the marketplace will function more efficiently. If they work well as expected, mandatory disclosures can ameliorate market failures without additional regulation of consumer market or judicial intervention. However, as consumers’ contracting behavioral researchers have argued, it is very unclear that such mandatory disclosure regulation would achieve its objective. Because of consumers’ various biases as behavioral insights indicate, they have inherently some limitation to achieve its objective. Despite these shortcomings of mandatory disclosure, however, mandatory disclosure regulation is inexpensive tool to regulate consumer markets and is the minimum requirement to legitimate consumer assent to standard form terms. Thus, this paper agrees that generally the starting point for regulation of standard form contracts should be mandatory disclosure. With respect to mandatory disclosure, what is more important is to make it more effective, but we cannot expect individual consumers to play such roles. Therefore, this paper emphasized the importance of consumer organizations’ role in preserving competition in the consumer market. consumer organizations provide consumers with information and advice by reviewing and comparing businesses’ items and contract terms. Especially, the Internet is a powerful and inexpensive tool in exchanging and spreading useful information between consumer organization and consumers. Consumers will be able to protect themselves by investigating the reputation of businesses and selecting only those with good reputations. In sum, if consumer organizations work well as expected, they can generate market pressure against businesses, and therefore mandatory disclosure regulations will be of value.
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