국제전자상거래에 의한 소비자중재에서의 소비자보호－중재가능성 및 중재합의의 유효성을 중심으로－

Abstract

In recent years, the international e-commerce contracts between the businesses and the consumers have increased remarkably, and accordingly the disputes arising from the business-to-consumer(hereinafter “B2C”) contracts in international e-commerce context have increased rapidly. A number of standard terms which businesses have posted on their websites incorporate the arbitration clauses, however in many cases consumers would likely agree to the standard terms without the knowledge of the existence and the legal implication of the arbitration clause. Therefore in such a situation of the aforementioned pre-dispute arbitration agreement, how to protect the consumers who are put in the weak position in terms of the social and economic aspects emerges as an important issue. Nevertheless the Arbitration Act of Korea does not contain any specific rules regulating the B2C contracts in the international e-commerce context, consequently leading to some confusions and chaos. This paper deals with the arbitrability and validity of the pre-dispute arbitration agreements by the standard terms between the consumers whose habitual residences are in Korea(hereinafter “Korean consumers”) and the businesses whose principal business places or offices are in Korea(hereinafter “foreign businesses”) in cases where the Korean consumers purchase the goods through the foreign businesses’ websites. Firstly provided that the governing law of arbitrability is the Korean law, even the disputes arising from the B2C contracts would be judged to be arbitrable in light of the applicable scope of the Arbitration Act and especially the stipulation of Article 3(1) of Arbitration Act. In regard to the validity of the arbitration agreement, this paper has sought for the effective and efficient measures to protect the consumers by regulating the arbitration agreements in the B2C contracts in the international e-commerce, through the application of Act on the Regulation of Terms and Conditions(hereinafter “Terms and Conditions Act”) as well as the mutatis mutandis application of Act on Private International Law of Korea(hereinafter “KPILA”). This paper has diagnosed the arbitration agreement would hardly be judged null and void categorically by applying Terms and Conditions Act and applying mutatis mutandis KPILA only because the arbitration agreement was made prior to the disputes and the place of the arbitration is in the foreign country. In this vein this paper suggests that the validity of the arbitration agreement shall be judged by the faithful interpretation of the texts of the relevant Acts on a case-by-case basis. In cases where the arbitration clause is not clearly stated in the standard terms published in the website to the effect that it has the consumers waive the right to file a lawsuit with a court, the foreign business shall be barred from asserting such a arbitration clause as a part of the contract, by applying Article 3 of Terms and Conditions Act provided that the governing law of the principal contract is the Korean law. Furthermore in cases where the arbitration clauses to the effect that it has the consumers waive the right to file a class action shall be made null and void as a provision unreasonably disadvantageous to the consumers, by applying Article 14 of Terms and Conditions Act provided that the governing law on the validity of the arbitration agreement is the Korean law. However in the absence of the specific applicable Acts on regulating the consumer arbitrations in the international e-commerce, there’s no denying the limitations would have to exist in protecting the consumers by way of the de lege lata of the current laws, thus de lege ferenda resolutions shall be ultimately sought afterwards. In approaching the exploration of the avenues to regulate the consumer arbitration in the international e-commerce, it is well advised to take both the activation of the consumer arbitration and the interests of the business into the consideration in a balanced manner, as well as have in minds the global characteristics of the trade and the special features of the e-commerce. In the recommendable future legislation, we would have to affirmatively accept the arbitrability of the consumer arbitration in the international e-commerce, then permissively recognize the pre-dispute arbitration agreement, while obligating the business to provide the information and prohibiting the arbitration agreement to have the consumer waive the class action right. More progressively we would need to consider the introduction of the termination right to be endowed with the consumer as in the Japanese Arbitration Act. The researches on the consumer’s protections in the consumer arbitration of the international e-commerce have yet to be sufficient, however in the near future more studies would be hoped to accumulate enough to guide and induce the legislation to resolve the problems eventually.