약관의 규제에 관한 법률의 판례분석

• 영문명: Analysis of Judicial Precedents in Law Respecting Regulation of General Clause
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 한삼인(Sam-In Han)
• 간행물 정보: 『비교사법』비교사법 제12권 2호, 369~410쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

The distinction between normative and factual restrictions needs to be classified when restrictions based on the principle of freedom of contract is analyzed logically. The former refers to restrictions imposed by a country's normative level of law, while the latter applies to ordinary transaction clauses. The general tendency in contemporary transactions is that 'bulk contracts' on goods are contracted by general clause. Therefore the general clause is a key concern in contemporary contract law. However in the area of transaction dominated by general clause, the client involved in a contract only has the right of freedom to make a contract, but the freedom to decide the contents of contracts is denied. Furthermore the contents of the clause have more advantages over the business taxpayers who draw up the contracts. Therefore, laws which regulate general clause have been quickly enacted by all countries to protect their citizens who are involved in consumption governed by general clause. Eighteen years have passed since The 'Law Respecting the Regulation of General Clause' was enacted and aimed at realizing the above objectives. Even though this law has been revised four times since it was implemented, it is still considered insufficient in offering protection to clients and an ideal and request of transaction society. In this paper various institutional matters related to the general clause will be examined and analyzed from a critical viewpoint, while the tendencies of judicial precedent in clause law is generally investigated through precedent research, which is the active study of legal principle. Based on those findings, several legislation theories will be covered that might enhance the effectiveness of this law. This paper does not discuss all the laws concerning the regulation of general clause because it does not attempt to develop a theory through analysis. Therefore it is limited to examining the institution through examining precedent. The main contents of this paper are as follows: the significance of the clause and the basis of binding force, description of the clause and objects of descripton obligation (including description and the exemption level of the description obligation) and the consequences of obligation violation, translation of the clause, invalidity of the unfairness clause provision, limitation of clause adjustment and the special rule of the invalidity of some sections, and revision measures (revision recommendations and revision orders) of the Fair Trade Commission on clause regulation.

목차

Ⅰ. 序說

Ⅱ. 判例分析

Ⅲ. 結論

[참고문헌]

【ABSTRACT】