글로벌 인터넷 기업과의 계약에 있어서의 약관규제법의 적용 가능성에 관한 소고 - 서울중앙지방법원 2015. 10. 16. 선고 2014가합38116 판결의 검토 -

Abstract

There are so many global internet business operators that has great influences on the internet ecosystem, the number of conflicts between which and the Korea-based users has been increased. Having said that, the recent courts’ ruling regarding those conflicts showed some problems in relation to the applicability of General Clause Regulation Act(“GCRA”). Basically, the ruling followed the reasoning that the Supreme Court sentenced before on the international transaction, one of which is that GCLA is not the global compulsory provisions so that it could not be applied to the international transaction. By the way, according to the Article 27 of the Private International Act(“PIA”) consumer contracts can be protected in the limited range by the domestic compulsory provisions. Therefore, the recent courts’ ruling drew the conclusion through the Article 27 of the PIA. However, it is impossible to find out the court’s decision whether GCRA could be covered by the domestic compulsory provisions so that it could be applied to the contracts with global internet business operators even though it is said that GCRA is the one of the examples of the domestic compulsory provisions by the scholarship. The applicability of the GCRA is the crucial issue to conflict of law, jurisdiction by agreement. Moreover the GCRA can void the contents of the contracts. The applicability of the GCRA could be connected to the issue whether the different rules should be applied between the domestic business operators and the global business operators regardless the speciality of the internet industry. I hope that the court would show the clear rule which could be the guide of the practice. In the other hand, some suggestions offered in this study need to be considered.

There are so many global internet business operators that has great influences on the internet ecosystem, the number of conflicts between which and the Korea-based users has been increased. Having said that, the recent courts’ ruling regarding those conflicts showed some problems in relation to the applicability of General Clause Regulation Act(“GCRA”). Basically, the ruling followed the reasoning that the Supreme Court sentenced before on the international transaction, one of which is that GCLA is not the global compulsory provisions so that it could not be applied to the international transaction. By the way, according to the Article 27 of the Private International Act(“PIA”) consumer contracts can be protected in the limited range by the domestic compulsory provisions. Therefore, the recent courts’ ruling drew the conclusion through the Article 27 of the PIA. However, it is impossible to find out the court’s decision whether GCRA could be covered by the domestic compulsory provisions so that it could be applied to the contracts with global internet business operators even though it is said that GCRA is the one of the examples of the domestic compulsory provisions by the scholarship. The applicability of the GCRA is the crucial issue to conflict of law, jurisdiction by agreement. Moreover the GCRA can void the contents of the contracts. The applicability of the GCRA could be connected to the issue whether the different rules should be applied between the domestic business operators and the global business operators regardless the speciality of the internet industry. I hope that the court would show the clear rule which could be the guide of the practice. In the other hand, some suggestions offered in this study need to be considered.