마일리지 제공기준의 변경과 약관의 설명의무 - 대법원 2019. 5. 30 선고 2016다276177 판결

Abstract

Under our Act on the Regulation of Terms and Conditions(“ARTC”), the Obligation to explain important details is in place to protect the interests of customers (Article 3, paragraph 2 of ARTC). However, our Supreme Court has exempted a business person from explaining (a) when a customer or the representative are fully aware of the important details, (b) when a customer could expect the details without explanation as it was common in transactions, or (c) when those details was already prescribed by law, only to repeat or supplement it. The decision to be studied provided specific criteria for the third case. In other words, the decision says that it is based on the individual customers to determine the existence of reasons for exemption, and it is clear that the statute here means a binding code order for courts and recipients, not an administrative rule that binds only the administrative office. The Supreme Court's exemption from the obligation to explain in these three cases is understood to be due to the lack of practical significance even if the obligation is required considering the purpose of the obligation. If the binding statutory order and the terms and conditions are the same, the same shall still apply even if the business person cannot apply the terms and conditions just because it has not fulfilled the obligation to explain. This is significant in that it embodied the criteria in accordance with the purpose of the existing precedents. However, since the reasons for such exemption are not based on the statutes, it is desirable to provide clearer standards to ensure the predictability of the business persons or customers. It is also necessary to consider whether terms and conditions in areas where there is no coercion need to be exempted from these obligations.