소비자계약상의 정보제공의무에 관한 연구

Abstract

This study is based on the thesis that there is an information gap between businessmen and consumers when consumer contracts take place, and accordingly businessmen should be held responsible with the obligation of the provision of information toward consumers, and when a businessman violates the obligation, he or she should be responsible for every aspect, and this study considers our legal system comparing it with the legislation cases of major developed nations. The analyzed subjects in this study are eight domestic laws, including consumer law, franchise business law, certified mediator law, visit selling law, guardian law, insurance law, stipulation law, electronic commerce consumer protection law, and installment law. This study is based on the analyzation and focuses on the characteristics and basis of the obligation of the provision of information when consumer contracts take place, and the items regarding the cancellation of the contract when there is a violation of the obligation and the problem of compensation, and the problems of current legal system are figured out, and as a means of interpretation of the law, the legal principles are reorganized and legislation theory is suggested. The contents of this study are as follows. Article 1 is the introduction of the objective of this study and scope and method of this study. article 2, concerns the obligatory provision of information when consumer contracts take place, the legislation cases of Germany, France, USA and England, and Japan are figured out, and the comparison between the cases has been carried out. In article 3, the current domestic system of the obligatory provision of information when comsumer contracts take place is figured out. And the main subjects are the meaning and characteristics of consumer contracts, meaning and legal characteristics of the obligatory provision of information, types of obligatory provision of information, basis of the obligatory provision of information and legal effect when there is an obligatory violation. In article 4, the overall problems of legal theories of the obligatory provision of information when consumer contracts take place are figured out. In article 5, based on the problems which are suggested in article 4, the legal theories of the obligatory provision of information when comsumer contracts take place are reorganized, and the legislation theories are suggested. In article 6, as the conclusion of this study, the interpretation and legislation theories regarding the obligatory provision of information when comsumer contracts take place are summarized. The summary of interpretation and legislation theory which is presented in this study as the reorganization of the legal theory of the obligatory provision of information are as follows. First, it's the problem of the composition of theories of the legal characteristics of the obligatory provision of information. Current academic theories usually point out that when the provision of information is not designated as the obligation of the contract, the obligatory provision of information should be regarded as the subordinary obligation of good faith principle, or as the cautionary obligation of the contract, and that from the previous steps before the contract, the obligation should be recognized. However, in article 3 of part 19 of consumer law, at the special law regarding individual consumers, the obligatory provision of information is designated, so the opinion that the obligation is only the subordinary obligation according to good faith principle is not right. Considering that the current regulations according to the consumer law have only the effect of proclamation, according to the types, the obligation can be considered as an obligation or subordinary obligation, but when the obligation is designated in the special law regarding the consumer contracts, the obligation should be considered an obligation, and when the consumer contracts which are not applied under special law, based on the designation of the obligation of provision of information, the obligation should be considered an obligation. Second, concerning the basis of obligatory provision of information, although there are consumer law and individual special laws, academic theories pursue the solution to the violation of the obligation based on fraud theory, misunderstanding theory, and negligence theory in the contracts, and in this study, to solve that, ① the effect of obligatory provision of information in consumer law should be reinforced, and ② the obligatory provision of information in the special laws regarding consumers should be typified, and the basis of the obligation should be found out in the consumer law or special laws regarding consumer contracts. In this study, it is pointed out that current consumer law part 19 article 3 is not obvious in the aspect of legal characteristic, and it can be condemned as a typical article, so a legislation theory, the obligatory provision of information in consumer law should be suggested more specifically and obviously. That is, the obligation should not exist as one article as article 19 of 'the obligation of businessmen', but should be detached as an individual article, and consumer's cancellation of the contract, compensation request right, and other punishment regulations should be designated all together and specifically. Third, it is suggested that regarding the elements of the obligation, the elements should be designated at the part of the obligation of provision of information in consumer law. In our civil law, there is no regulation regarding the obligation in the consumer contracts, although the obligation is designated in consumer law, but it has no real power, and concerning special laws in consumer contracts, the provisions of the obligation are not specific and typical, so regarding the elements of the obligation, we are depending on academic theories. In this study, it is argued that the elements or determining criteria should be suggested not by academic theories, but by making the provisions of the obligation in the consumer law more specific, and through the interpretation of the law article. Fourth, it is argued that the theory regarding legal effect when the obligation is violated should be reorganized. Regarding the legal effect of the violation of the obligation, in civil law and consumer law, there is no related provision, and in the special laws which are the subjects of the analyzation in this study, regarding the cancellation of contracts, several special laws recognize the cancellation right, but regarding compensation, there is no regulation, so currently, academic theories are organizing the obligation through misunderstanding and fraud theory regarding cancellation of contracts, and concerning compensation, they are organizing the obligation through the responsibility of failing to pay back the debt in article 390, the responsibility of illegal acts in article 750, or the responsibility of negligence in contracts. It is argued that as the legislation theory regarding cancellation of contracts, article 19 in the regulation regarding the obligation of provision of information in consumer law should be revised, and in specific circumstances, the cancellation should be permitted. And it is argued that like article 45 in visit selling law and article 43 in installment selling law, the regulation of "The items which do not coincide with the regulation of the obligation of provision of information do not have any effect if the items make consumers inferior" should be designated directly. And it is argued that as the legislation theory regarding compensation, as the violation effect of the obligation of provision of information of businessmen in consumer law, like the regulations regarding cancellation of contracts, the regulations regarding compensation should be designated in the same article. And it is argued that in the regulation of responsibility of businessmen of part 19 article 5 in consumer law, "Businessmen should solve or compensate consumers' complaints or damage caused by defects of items, and the damage of consumers caused by failing to pay back the debt should be compensated" is stipulated, and the meaning of the stipulation should be enlarged, and the regualtion of compensation should be applied to the case of violation of the obligation of provision of information in the same part article 3. In addition, concerning compensation, contract responsibility(civil law part 390) or illegal act responsibility(civil law part 750) are used as element of theories, it is argued that when theories are organized by illegal act responsibility, consumers must prove the intention or negligence or causal relationship of businessmen, and there is no possibility of compensation, so the proving responsibility should be converted or relieved and consumer right should be protected. This study tried to systematically reorganize legal theories based on the problems regarding legal theories which are created by judicial precedents that businessmen have the obligatory provision of information, and when the violation of the obligation occurs, businessmen should compensate the damage toward consumers. And in the future, the regulations regarding the obligation of provision of information in consumer law should be made more specific, and the regulations should be sufficient to be recognized as the legal theories regarding the obligation of provision of information, and concerning the contents and determining criteria of the obligation, it should be made more typical and systematic.