약관규제와 계약법

Abstract

A contract by “standard terms and conditions”(standard clauses) is a type of contract that requires a unique regulatory principle due to the nature of the standard terms and conditions. “The Act on the regulation of terms and Conditions”(Hereinafter “the Act”) is a special law of the Civil Code that coherently and systematically codified such a regulatory law and is an important fruit and asset of the academic circles of civil law. However, until now, from the viewpoint of the contract law, the attempt to interpret the problem of the regulation of standard terms and conditions and to apply it to the practice is not necessarily active. The purpose of this article is to review the significance of the Act from the perspective of contract law. The results of the review are briefly summarized as follows. (1) Judicial regulatory means, such as the incorporation control of the standard terms and conditions or the content control, assist in the realization of private autonomy by supplementing or restoring the freedom of self-determination of the other party. In this regard, the regulation on the standard terms and conditions should be understood as a principle to complement and expand the freedom of contract or private autonomy, rather than limiting or revising it. (2) As a requirement of incorporation into the contract content, the Act imposes an obligation to explain important contents in addition to the obligation to specify and deliver a copy of the standard terms and conditions to the customer, and does not explicitly require the other party ‘s consent to incorporate the standard terms and conditions. The duty of explanation of important contents should be evaluated as a very meaningful legislation which characterizes our law from a practical point of view in that it can appropriately set the contracting process and prevent disputes based on the standard terms and conditions. (3) The 3 principles for the interpretation of standard terms and conditions shall be mutually complementary or overlapping or individually applying to determine the objective meaning of the standard terms and conditions, to define the direction of interpretation as a preliminary stage of content control (nullification), and optionally to control the content by nullifying the standard terms and conditions. In particular, the principle of pro-customer interpretation is the principle that, if the meaning of the standard terms and conditions established through objective interpretation is ambiguous, it shall be construed as reducing the scope of the liability limit of the business or as nullifying the standard terms and conditions when unfairness is recognized so as to be advantageous to the customer. The meaning of the principle of pro-customer interpretation must be reevaluated. (4) The content control by the Act are subject to the standard terms and conditions, but the terms of the contract that meet the requirements of the ‘unilateral preparation’ (a party to a contract prepares unilaterally) and the ‘in advance preparation’ (a party to a contract prepares in advance), if not standard terms and conditions by the Act, are found to be similar to the standard terms and conditions by the Act because of the lack of possibility of individual negotiation. So the terms of the contract would be possible to be controled by analogizing the Act. As the principle or means of content control in the level of Civil Code, Article 103 and Article 104, the one-sided mandatory regulations and the good faith principle can be exemplified. Especially it is noteworthy that the development of the case law on the effect of the contract and the control of the contents by the good faith principle.