영국 부당조항법 초안(The Draft Unfair Terms Bill)에 관한 소고

Abstract

English law accepts the basic principle of freedom of contract that the parties should be free to agree on any terms that they like unless their agreement is illegal or otherwise contrary to public policy because it infringes some public interest. On the other hand, it has been limited for hundreds of years on the basis that certain contract terms, particularly in standard form, may alter a distribution of risks that the customer would reasonably intended. The alteration may often result from his simple ignorance caused by either lack of opportunity to become aware of clauses or inability to understand their full potential implications. In addition, it may also result from disparity in bargaining power which does not allow the customer to look after their own interests even if he is fully aware of the unacceptable clauses. In response to this problem, English law has employed statutory intervention techniques to control unfair contract terms which are mainly UCTA and UTCCR. Thus potentially unfair terms in contracts are at present subject to one or of both of two quite separate legal regimes. However, the two regimes have been severely criticised because they have different effects, scope of application, concepts and terminology, and to some extent they overlap. In recognition of these problems, the Law Commission has proposed the UTB in an attempt to unify UCTA and UTCCR. This study describes and analyzes in detail how the Draft UTB regulates unfair terms in order to offer practical advice to lawyers who may deal with various unfair terms. It also attempts to explore any problem in Korean law and put forward future direction of Korean law in light of the Draft UTB. The main concern of this paper will be confined to some of the various aspects of the Draft UTB which may draw our attention when compared with Korean law.