인터넷 매체를 이용한 상행위와 상법총칙·상행위법의 수용

Abstract

New business models by use of internet media are expected to be more and more in proportion to the development of technology. The business models are not regulated by the article 46 Commercial Act and it would be needed to revise the related articles. Among the transactions using the internet, there are commercial transactions like as establishing a shopping mall in cyberspace(the operation of online shopping malls), online sales in the shopping Web sites, running internet platforms and making and providing digital contents to the internet platforms etc. Sales in cyber shopping mall have the nature of ‘basic commercial activities’ of the article 46, however searching services and electronic bulletin board service make no legal relations between the providers and users. In addition, the use of contents given through a portal site is not ‘a deal by the facility’ of the article 46. Using the internet media like facebook, blog or mini-homepage, if it is engaged in business corresponds to ‘activities relating to advertising’ of the article 46. Recently internet broadcasting services that combine broadcasting and telecommunications are being used a lot. A question arises about whether playing a video through the internet broadcasting platform has the nature of commercial activities. It should be recognised that broadcasting through the internet broadcasting platform has the nature of commercial activities. The broadcasting has commerciality, repeatability and continuity with plans. It is similar to ‘activities relating to publishing’ of the article 46. The fact that online broadcast channels are consumed as consumer goods and online broadcast services also replace the previous broadcast can not be ignored. Therefore the nature of the commercial activities of the broadcast could be recognized. Commercial Act had the article 5(merchant by legal construction) to include the new business models in commercial activities, however the article could not include the various transactions by way of internet. As long as ‘a shop or similar equipment’ of the article is construed as the physical facilities of real world, the article couldn’t include the Internet platform. The internet commerce comes into existence in virtual space, therefore the legal rules is needed in conformity with it.