EU 私法의 전개 - EU Consumer Acquis and the European Contract Law -

Abstract

The purpose in this paper is to provide a brief overview of development in European private law. Judicial situation of the modern European private law consists of two parallel temporal features. The development of EU contract law and EU consumer contract law are two related but distinct projects. Part Ⅱ in this article aims at placing the subject in the context of the EU consumer acquis(acquis communautaire). During the 1980s and 1990s, the resulting legislation was particular in its scope, targeted in its aims, and its main technique was the harmonization by directive of aspects of the national contract laws of Member States. Although consumer law forms a reasonably detailed set of EU rules on private law and, piecemeal developments, a lack of coordination between different areas have provoked criticism about its incoherence. In recent years, therefore, there has been increased focus on the coherence of European Union private law, starting with the field of consumer contract law. But even beyond this, steps have been taken towards increased coherence in contract law generally. Because of its potential to improve the coherence of existing legislation in this field, as well as to ensure that future legislation would fit better with existing measures, the EU Commission has been working towards a ‘common frame of reference’ intended to promote the coherence of private law in the EU. Part Ⅲ in this article describes the unification movement in the area of the private law. The piecemeal legislation of the Community cannot cope with divergencies resulting from the context of national laws and in particular with differences in structure, principles and concepts. The harmonization of the general framework which accommodates specific instruments could be carried out by legal scholarship. The important facets of the process are the contributions of legal scholarship which has turned to the analysis of general principles of private law in various fields. The Commission on European Contract Law has certainly made the greatest progress in its work. Part Ⅳ - Ⅵ in this article deals with the European Commission's response. The European Commission has undertaken a series of initiatives aimed at increasing the overall coherence of European contract law:An Action Plan of the European Commission issued in February 2003 moves the development of the European contract law into a new phase. Following up the pan-European discussion, considering problems which result from differences among the national contract laws concerning the uniform application of EC contract law, the Action Plan goes a step further by regarding the academic examination of European contract law as an indispensable core component of further progress towards a coherent European contract law. The Commission is striving to erect the “common frame of reference(CFR)”. It aims to establish common principles and terminology in the field of European contract law. Over the last decade, increasing dissatisfaction with this technique prompted a move towards ‘full harmonization’ in EU consumer law. In 2008, the Commission sought in its Consumer Rights Directive Proposal to extend ‘full harmonization’ to four of the most important directives in the consumer acquis, the proposal met with very considerable opposition. The Consumer Rights Directive as promulgated in late 2011 is therefore much reduced in scope, its provisions leaving aside almost entirely change to earlier (minimum harmonization) directives on unfair terms and consumer guarantees in sale. In this regard are discussed in part ⅦHowever, the Commission has recognised that it is not desirable to continue to adopt EU legislation in the same format. And, in this regard, the Green paper on policy options for progress towards a European contract law for consumers and businesses of 1 July 2010 marked a turning point at which the prospect of an optional instrument of contract law was given particular emphasis. In October 2011, the Commission proposed a new ‘opt in’ legal regime for the sale of goods. Part Ⅷ gives a description of the proposal for a Regulation on an optional Common European Sales Law. Finally, its evaluation and perspectives as a concluding remarks are mentioned(Part Ⅸ).