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영국 부당조항법 초안(The Draft Unfair Terms Bill)에 관한 소고A Study on the Draft Unfair Terms Bill

Other Titles
A Study on the Draft Unfair Terms Bill
Authors
이병문
Issue Date
Sep-2004
Publisher
한국비교사법학회
Keywords
Unfair Terms Bill; Consumer Protection; Unfair Contract Terms; 약관규제법; 소비자보호; 불공정거래; 상사계약과 소비자계약의 분화
Citation
비교사법, v.11, no.3, pp.231 - 264
Journal Title
비교사법
Volume
11
Number
3
Start Page
231
End Page
264
URI
http://scholarworks.bwise.kr/ssu/handle/2018.sw.ssu/20567
ISSN
1229-5205
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.
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