약관에서 불명확조항의 해석 - ‘고객 유리의 해석 원칙’을 중심으로 -

Abstract

Most market transactions including insurance transactions, banking transactions, purchase of goods and services via the Internet need the process in which customers should agree to the standard terms and conditions. In this way, standard form contracts are getting ubiquitous in reality these days. Under these circumstances, discussions over standard form contracts should be taking place from the perspective of contract law, not to speak of insurance policy or administrative regulations. In this regard, ‘interpretation favorable to customers’ or so called ‘contra proferentem rule’(hereinafter, “the rule”) that is specified in the Article 5(2) of the Act on the Regulation of Standard Form Contracts has to be understood as one of general rules for interpreting contracts, inter alia, as a way of normative interpretation. With regard to the meaning of “If the meaning of terms and conditions is not clear”under the paragraph as an application requirement of the rule, the rule is not always applied to the cases where customers argue about the meaning of certain terms or the cases where the wording itself is not clear. The purpose of the contract interpretation is to protect the foreseeability and reliance of the other party who is expected to be reasonable. Therefore, unreasonable expectation of customers should not be protected by the rule. Meanwhile, the rule should be used as a last resort that can be applied only when the meaning of particular term remains vague or ambiguous even after applying other general contract interpretation rules such as interpretation based on rationality, principle of good faith, and objective interpretation rule that is regulated in the Act. The Supreme Court also applies the rule of reasonable interpretation to standard form contracts, and confirms the supplementary nature of the rule. This stance of the Court is desirable from the perspective that the foreseeability of business operators would plunge if the Court expands its discretion in applying the rule excessively, and that courts would do a minimum paternalistic role with the rule in the autonomous relationship between enterprisers and customers. Finally, one of the skeptical perspectives regarding the rule argues that we don’t have to be obsessed with the stepwise control over standard form contracts. According to this opinion, if a specific term becomes nullified in the level of content control to draw a much more favorable result for customers, that kind of interpretation is truly the interpretation favorable to customers. This stance, influenced by the German academia, understands the meaning of “favorable to customers” in a broader context.