Trading of modern society is becoming highly diversified and large-scale. In most cases, Individuals and a company use contractual terms and conditions that the company pre-composed. But For that reason, Usually Pre-made contractual terms and conditions work to company’s advantage. On the other hand Most customers don’t know about the meaning of contractual terms and conditions and Even if they knew it and the terms are against customers. They don’t have any chance to change Pre-made contractual terms and conditions. As such, In the trading field of governing by terms and conditions, Providers have much freedom of command. It limits the freedom of contract decisions to customers who are in passive position. Customers forced to sign by the terms and conditions have only the freedom of contract. So, In the formation of contracts by the terms and conditions, Liberty of contract should be restricted and require a modification. For the customers protection, It is a global trend that We should emphasis fairness in the contract contents by regulating the terms and conditions. For this reason in Korea, We legislate 「ACT ON THE REGULATION OF TERMS AND CONDITIONS」. The opponent of business operator is expressed as a ‘Customer’ by the law. The ‘Customer’ means not only the final buyer but also the financially challenged like the petty merchant or Subcontractors who can’t say no to pre-made contract. Controls of “CONTENT OF THE TERMS” are an important tool to protect the financially challenged and to guarantee the fairness of the transaction. But Unlike the legislative purpose, There are too many provisions that are vague and abstract in 「ACT ON THE REGULATION OF TERMS AND CONDITIONS」. There are many cases that could not reach a conclusion that didn’t protect customers in the court’s decisions. At these points, I try to find ways of resolving by studying the basic legal principles, foreign similar laws and theoretical reviews. Especially I review in The transfer control, interpretation control and unfairness Control. I will make a De lege ferenda offer. Remarked as above, The thesis includes interpretations and de lege ferenda that compensate the defect. A summary of major matters is as following. First of all, I sum up the thesis about interpretations. First, The terms and conditions on 「ACT ON THE REGULATION OF TERMS AND CONDITIONS」are every details in which the providers prepares matters to be the contents of the contract in order to conclude the contract with the customer. If we define the concept of the terms and conditions strictly, the customer will not be protected by the law. On the contrary, Individual agreements function to reduce the concept of the contract, so the judgment of the requirements of individual agreements and the burden of proof must be made with caution. Second, It is necessary to agree to be made under the terms of the contract between the providers and customers. Terms and Conditions In order to become a contractual agreement, it is necessary to agree on the employment contract between the parties to the contract. In addition, the providers’ obligation to make a contract is not merely declaratory in order to induce the contractor to create a fair contract. The important objects of the Liability for explanation are content of payment, exemption of providers, contents about responsibility of customer. Third, The regulation of terms and conditions could limit or exclude liability in many cases because of Some special laws like labour law. But If Provisions of each law were not contradictory, inconsistent, We have to make a application of 「ACT ON THE REGULATION OF TERMS AND CONDITIONS」for protection of customers. Fourth, In the interpretation and control provisions, The Principle of good faith should be more strengthened as compared with general civil law’s principle. The objective interpretation principle does not take into consideration the individual circumstances of the customer, which is insufficient to protect the customer. Therefore, In the interpretation and control provisions, it should be complemented by ‘Contra Proferentem’. Fifth, The provisions of Article 6 Clause 1 and Clause 2 of 「ACT ON THE REGULATION OF TERMS AND CONDITIONS」need to be improved systematically. In addition, the criteria and standards for the control of unfairness, as regulated by the Law, are not clear. On the other hand, the general effect of the Law is not enough to protect customers because it is difficult to expect fair use of the terms. Sixth, The penalty for breach of contract under Article 8 of the Law includes the punishment, which can not be reduced and maintained effect by the court. The prohibition of filing an unfair suit, as stipulated in Article 14 of the Law, should be considered to include an unfair arbitration agreement. In addition, the provision of transferring certification responsibility to the customers is severely unfair. Seventh, In cases where unfairness control is not directly involved in the individual control, it should be subject to general control because the judgment of unfairness is presumed to be reserved. If the terms of the contract are not included in the contract or are unfair and invalid, the contract may be determined by applying voluntary law to the invalidated parts. Restriktive Interpretation for maintaining effect should be seen as a means of controlling content for customer protection. On the other hand, Administrative control and judicial control differ from each other in terms of unfairness judging by their structural differences and characteristics. It is necessary to complement each other in order to guarantee the predictability of customers. To the next, I sum up the thesis about De lege ferenda. First, It is necessary to delete the phrase ‘certain form’, which is defined as the conceptual element of Article 2, Paragraph 1 of the Law, and to establish the requirement ‘for multiple contracts’. Article 4 of the Law stipulates “individual negotiation” as a requirement of individual agreement, and it is desirable that the providers prove whether there has been substantial negotiation of the individual agreement. Second, It is necessary to illustrate each case in details like ‘Contents of payment’, ‘Exemption from responsibility of providers’, ‘Addition the customer’s responsibility’ in Article 3, Paragraph 3 of the Law. However, it is preferable to delete provisory clause in Article 3, Paragraph 3 of the Law because it is not familiar with the customer protection idea. It is also necessary to revise Article 3, Paragraph 4 of the Law, which stipulates the effect of incorporation control, even in the event of breach of the duty of writing. Third, In Article 30, Paragraph 1 of the Law, We shall be deleted “the Labor Standards Act” as applied law. In Paragraph 2 of the Law, 「ACT ON THE REGULATION OF TERMS AND CONDITIONS」is fixed as Special Priority Act. If applying other laws is favorable to the customer, It is desirable to protect customers in an overlapping manner. Fourth, We shall revise Article 5, Paragraph 1, thereinafter of the Law as “not to be interpreted as disadvantaged by customer”, We reflects the original meaning of the principle of unified interpretation and compensate the defect of objective interpretation principle. Fifth, Article 6, Paragraph 1 of the Law shall be revised as “A provision that has lost its fairness is invalid in violation of the principle of good faith”. In Article 6, Paragraph 2, Subparagraph 2 of the Law, We shall take into consideration ‘the purpose of the contract’ and ‘the contents of the contract’as the criterion for the control of unfairness, We need to specify the object. On the other hand, the provision of punitive damages to providers who use unfair terms can also help protect customers. Sixth, Article 14 of the Law requires that the provision explicitly amend to include an unfair arbitration agreement and It is regarded as not valid that unfair terms and conditions shift responsibility on the burden of proof to the customer. Consideration should also be given to establishing exclusive jurisdiction rules based on the customer's address for disputes arising out of contractual agreements. Seventh, the unfair terms and conditions stipulated in Article 17 of the Law shall be amended as “unfair terms and conditions that fall under the provisions of Articles 6 to 14” and It is desirable to clarify the screening criteria for the unfairness of administrative control. In this way, this thesis develops the detailed interpretation theory and the legislative theory through comparative legal research and precedent analysis focusing on some problems which are not in the protection of the customer which is under the current Law. However, the terms of the contracts in international trade custom and the procedural issues of administrative control were not discussed, Some of the legislation introduced in this thesis focuses on the provision of legislation as individual legislation in terms of customer protection. In the future, I hope that the revision process of the Law and the absorption and integration of the Law into the civil law will be reflected in a comprehensive discussion of the reality of international transactions and the general principles of the judiciary. ，韩语论文网站，韩语毕业论文 |
