영국의 불공정조항 관련 규제의 정방향과 우리의 대응

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 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 recently proposed the DUTB in an attempt to unify UCTA and UTCCR. This study describes and analyzes in detail how the DUTB regulates unfair terms in order to offer legal advice to our sellers residing either in UK or in Korea who plan to enter into UK markets. It also attempts to find any differences in their regulation of consumer contracts and business-to-business contracts and to put forward how to cope with recent development in English regulation of unfair terms when one makes out a draft of contract.