약관규제법상 불공정약관조항 사용금지 의무 위반에 대한 행정적 책임 주체와 관련 문제

Abstract

On the premise that the legal doctrine of determining the subject of administrative responsibility for the interpretation and application of the Act on the Regulation of Terms and Conditions(“The Act”) does not have to be the same as the legal doctrine of determining the parties to the contract under the Civil Act, this article mainly examines how to establish the legal doctrine that determine the administrative responsibility under the Administrative Law in the interpretation and application of the Act and accordingly, whether Booking.com, an online platform provider, can be viewed as an administratively responsible entity under the Administrative Law in the Booking.com case, in which the decision of the Seoul High Court was rendered. Furthermore, it will be briefly reviewed as to whether the non-refundable clause can be regarded as falling under Article 8 of the Act. The conclusion of this article can be summarized as follows. First, considering the legislative purpose of the Act, the nature of the administrative control of the Korea Fair Trade Commission as an abstract norm control, and the characteristics of the online platform provider and its services, it should be interpreted that the legal doctrine of determining the subject of administrative responsibility for the interpretation and application of the Act can be established independently from the legal doctrine that determines who the parties to a contract that includes the unfair terms and conditions clause under the Civil Act are. Second, the contract that constitutes the requirement of one party to the contract to become a business operator under Article 2, Paragraph 2 of the Act, which is the premise for determining the subject of administrative responsibility under the Act, can be construed not to be limited to the contract containing the unfair clause clause but to include other contracts closely related thereto as long as the other party is the same. In order to say that another contract is closely related to a contract that contains unfair terms and conditions, the conduct according to the contract must reach the degree of being more actively involved in the establishment of a transaction, rather than merely an intermediary action as a mere act of fact. Third, in order for the mail order brokerage business operator to be recognized as having offered the terms and conditions to the customer as the content of the contract, it is not enough just to provide information or information access through a cyber mall or online platform, and it is necessary to be involved in the mail order transaction process. In particular, the circumstances that the mail order brokerage business operator can determine the terms and conditions in question or affect those determination and obtain resulting economic benefits will be a strong basis for the finding that the mail order brokerage business operator proposes the terms and conditions in question as the content of the contract.