약관규제법에 의한 면책약관의 규제 - 전자상거래를 중심으로 -

Abstract

Almost 20 years have passed since the Republic of Korea passed Adhesion Contract Act. The Act has enabled to cure the unfair adhesions by courts' judgements and Korean Fair Trade Commission's decisions. But still there are some complex issues arising by the emergence of Internet shopping mall. In this paper the authors examinate how to regulate exemption clause and deals three issues. One issue is about “clickwrap license,” dealing whether acknowledge it or not. Clickwrap license were developed in response to massive growth of the Internet and Internet technology. What standard can we suggest to prove the obligation to specify and explain adhesion contracts? The authors think clickwrap license is only permitted when the content of adhesion contracts were explained in the website and, upon the request of the customer, the copy of them were delivered to customer. The second issue is about the prohibition exemption clause of the model adhesion contracts by Adhesion Contract Act. When exemption clauses are enlisted in the context of contract terms, can the consumer insist the void of the contract? It seems even not easy one when government agencies such as Financial Supervisory Service, Fair Trade Commission, approved the adhesion contract as the model adhesion contract. The authors think adhesion contracts and any other regulations are supposed to be in different areas, so that it will rarely affect each others. The third one is about the conflict of law. When other laws conflict with adhesion contract Act, how the regulator interpret the effect of adhesion? To protect consumers, which is the basic intention of the adhesion laws, the authors insist that the laws should be interpreted for the best interest of consumers in re these issues. Also they are suggest to legislate unified Act to achieve the goal.