전자거래에서의 착오의 문제 서설 - 전자상거래소비자보호법의 검토

• 영문명: A Preliminary Study on Errors in Electronic Transactions - Review of the “Electronic Commerce Consumer Protection Act”
• 발행기관: 한국재산법학회
• 저자명: 서희석(Seo Heeseok)
• 간행물 정보: 『재산법연구』財産法硏究 第24卷 第2號, 1~38쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.10.30

영문 초록

  Owing to the nature of its technology, electronic transactions can easily result in errors. Once the manifestation of intention is dispatched in the electronic transaction, it is difficult to retract it because of the instantaneity of the dispatch. Also, there always exists the possibility of user mistakes ？ inexperienced users are generally poor at manipulating the machine, and experienced users might be unaware of making mistakes from force of habit. Due to the high probability of such situation, countries such as the U.S., EU and Japan, as well as the United Nations Commission on International Trade Law, have contrived legislations to deal with how to keep users of electronic transactions safe from errors.
  There are two general legislative responses regarding the errors of electronic transaction:
  The first is a "prior measure" type that guides entrepreneurs to take technological measures for the prevention of errors. There are two ways in which to guide entrepreneurs to take such a measure; one is to force entrepreneurs into taking the measure by conferring administrative duty on them (Administration Regulation Type), and the other is to guide them indirectly by conferring private law incentive on the measure (effective authorization of contract). The second response is "ex post facto relief" type that confers the right of "cooling-off" to the person who committed the error within a fixed period of time. The pre-existing "error theory" attempts to protect a partner in a contract by disabling the contracting party to dissolve the contract in certain cases ？ in particular, those cases that show the contracting party to have committed a serious error. However, the legislation of "ex post facto relief" type is the relief means to try to protect consumers by recognizing uniformly cooling-off of the person who committed the error.
  The legislation of the Korean Electronic Commerce Consumer Protection Act recognizes both types, that is, not only "prior measure" type of so-called "Administration Regulation Type" but also "ex post facto relief" type that confers the right of cooling-off to consumers. When compared with other legislations, it cannot be said that this type of legislation is general. Most other legislations utilize a "prior measure" type that is regarded as private law. It is not accidental that the peculiarity of the legislation of Korea has lead to the "legislative theories" which suggest molding the Administration Regulation Type into the formation of private law regulation.
  This article looks into the content of the Korean legislation regarding error problems in electronic transactions based within the above-mentioned context.
  First, this article explains the background of the appearance of an error problem in relation to the technological nature of electronic transactions. It then compares the content of other national legislations responding to the error problem, which will help clarify the objective position of Korean legislation.
  Next, this article will examine Korean regulations comprehensively, and analyze the content of the "legislative theories". Based on these observations, this article will show that the "ex post facto relief" type of legislative responses to error problems in electronic transactions, specifically, "cooling-off", have proved most adequate for the purpose of protecting the consumer.
  Finally, this article indicates that it is a Korean legal subject how the Korean law has to correspond to error problems, not in the field of "electronic commerce", but in the field of "electronic financial transactions" (in particular, electronic funds transfer transactions).

목차

Ⅰ. 들어가며
Ⅱ. 전자거래에서 착오문제의 등장 배경
Ⅲ. 전자거래에서 착오문제에 관한 비교법
Ⅳ. 전자거래에서 착오에 관한 한국법의 규율
Ⅴ. 맺으며 ― 남은 과제(전자금융거래에서의 착오문제)
참고문헌
〈Abstract〉

키워드

전자거래 착오 표시상의 착오 조작실수 전자상거래소비자보호법 청약철회 배송 전 취소 전자상거래 전자금융거래 전자자금이체거래 전자계약법 electronic transaction electronic commerce electronic financial transaction electronic funds transfer (EFT) electronic contract Electronic Commerce Consumer Protection Act error withdrawal (retraction) cancellation before delivery