은행근저당권설정비 부담주체에 대한 약관의 효력 - 대법원 2010.10.14. 선고 2008두23184 판결에 대한 평석을 중심으로 -

Abstract

Nowadays every person has bank account. Bank trade plays very important role in everyday life of the people. Korean people want to habe their own houses. Therefore they borrow money on their house. This is so called mortage loans. Subprime mortage was a cause of the global financial crisis in the year of 2007, 2008. On the other hands, standard contract terms has important roles in modern, mass product society, especially in the field of bank business. But the interest of the clients can be neglected by the unfair standard contract terms about the bank trade. Therefore, it happens very often that people confront problems with the use of inadequate standard contract terms. This study concentrates on analysing the contract terms about the bank business. The contents of standard contract terms about bank business should be valid in regard of korean unfair contract terms act and jurisdiction. There were some discussions about the problem, who should bear the fee for getting mortage in korea. The old standard contract terms about bank business allows the selection of the parties in this point. But the korean fair trade commission has revised the standard contract terms about bank business. It has also enforced the new clauses to all banks. The bank association sued the fair trade commission. The seoul high court accepted the claim of the bank association. But the supreme court has broken off the decision and refer the case back to seoul high court. The seoul high court is now reexamining the case. The author has in this article analyzed court cases about this problem. The old standard contract terms about bank business is valid in regard of § 6 korean unfair contract terms act. The revised standard contract terms about bank business, in short, has problems. The older clauses are adequate in regard of the interest division of the parties. Therefore the fair trade commission should not enforce the new clauses. But some standard contract terms of bank business is vague. Therefore, it should be defined more clearly.