UN전자계약협약에 관한 비교법적 고찰

Abstract

The ‘United Nations Convention on the Use of Electronic Communications in International Contracts’ [hereinafter, “UNECC”] was adopted in 2005 in response to international needs in the electronic environment. However, only two countries have deposited the instrument so far and UNECC needs one more deposit to be ratified. If ratified, UNECC shall have the same effect as a domestic statutory law even without consent of the National Assembly under the Constitution of Korea. At this point, this article tries to deal with the question of whether Korea should ratify the UNECC and whether Korea should legislate new law or amend the existing law through the reception of the UNECC. These questions are answered through a comparative analysis between UNECC and the related domestic law such as Electronic Transaction Framework Act, Electronic Commerce Consumer Protection Act, Civil Law, etc. For purposes of this research, it first introduces main features of the UNECC, such as objective of the UNECC, main principles on which the UNECC is based, sphere of application, party autonomy, definitions, interpretation standard, location of the parties, information requirements, legal recognition of electronic communications,form requirements, time and place of dispatch and receipt of electronic communications,invitations to make offers, automated message system, availability of contract terms,error in electronic communications, etc. The article will also compare the UNECC’s provisions with the applicable Korean Laws. After looking into such issues, the conclusion is drawn that Korea should positively and actively consider ratification of the UNECC as it is found the benefits would outweigh the reasons not to ratify and would be very few possible changes caused by the ratification in the regulation of international electronic contracts. Rather, it was found that legislation is necessary with the following provisions:location of parties, legal recognition of electronic communication, form requirements,time of dispatch and receipt. Furthermore, Korea is the leading country forICT(Information Communications and Telecommunications) and the Korean legal system for ICT is at quite a high level. Thus, it appears that there are no special problems which would hinder the ratification. Regarding the issue of equivalence between applying UNECC to international electronic contracts and applying local laws to domestic electronic transactions, there is a restrictive scope of domestic law provisions which need to be modified as mentioned above. In closing, it is expected that Korea will play a key role in effectuation of the UNECC.