최근 미국에서의 약관에 관한 논쟁 검토 - 래딘의 「Boilerplate」와 그에 대한 비판을 중심으로 -

The purpose of this article is to overview recent discussions about the boilerplate in the US by introducing Radin’s 「Boilerplate」(hereinafter ‘this book’) and its criticisms and to find their implications for Korean academia. According to Radin, the nonnegotiable boilerplate terms deprives us of our right to jury trial and relieve providers of responsibility for harm without anv real consent, that is an informed consent, of recipients. She argues that boilerplate rights deletion schemes have degraded traditional notions of consent and contract, and sacrificed core rights whose loss results into democratic degradation. In this regard, she proposes a new analytical framework instead of the current contract doctrines of unconscionability and void as against public policy. Most of all, she argues that boilerplate should be regulated under products liability law or a new branch of tort law. Most criticisms of this book focus on her notion of consent. and some “boilerplate apologists” argue that implications of the price effect are never confronted in this book. In Korea, under the influence of the Supreme Court’s firm attitude toward the nature of boilerplate and enactment of the Act on the regulation of terms and conditions, the notion that boilerplate is also a contract is deeply ensconced in academia. However, even considering the difference in legal system between the two countries, we need some more elaborate discussions about the consent to boilerplate and its fit to contract theory. In this sense, the discussions in the US as well as this book could be worthy of consideration.