電子商去來 시대에 있어서의 契約의 成立 時期 — 發信主義의 修正의 필요성을 중심으로 —

Contract formation needs meeting of two minds, namely offer and acceptance. A contract is formed when the offeree accepts the exact offer made by offeror. However, contract formation involves a difficult problem. For example, regarding the Korean civil law, there is a sharp conflict of opinion in harmonious interpretation of art. 531 and art. 528①, 529. However, in case of electronic documents, art. 6 of the Korean “Framework Act on Electronic Commerce” articulates the moment of receipt of offer or acceptance(Willensklerung). It was early 1800s when English courts were faced with the question of whether to make an acceptance valid at dispatch or at receipt in the communication over long distances. Hence the “mailbox” rule, also termed the dispatch rule, became the settled doctrine not only in England but also in the United States. The theme of this article is focused on the modern communication having created a world in which there is no indifference between the dispatch and receipt rules. The world today is completely different from that of the court in Adams v. Lindsell case, indeed, it is wholly different even from the world of a few decades ago. Therefore, these days, technological innovation sparks a need for new legal rules, having generated a need for new legal rules to govern even old traditional technologies. Consequently, I can say, the substance of this article is that contracts formed through the use of traditional postal mail(non-instantaneous communication) and other state of the art technologies, whether or not governed by the dispatch rule in the past, should now be governed by receipt rule.