국제항공여객운송계약에서의 오버부킹과 약관규제법의 적용 여부

Fundamentally, this case, a contract for international air passenger transportation, does not fall under the consumer contract stipulated in Article 27 of the Private International Law. The contract for international air passenger transportation is a lump-work contract aimed at completing transportation, and thus the EU Regulations have jurisdiction over the defendant’s business office in accordance with Item 3, Clause 2, Article 26 of the Private International Law and the proviso in the Clause 2. As regards ‘Act on the Regulation of Terms and Conditions’, it is not stipulated that the act should be enforced even in case a foreign law is accepted as a governing law, and moreover, the enforcement officers has no will to enforce the act irrespective of the governing law; sans phrase, the act is not an internationally compulsory provision. Thus, ‘Act on the Regulation of Terms and Conditions’ may not be applied to this case. The Supreme Court ruled that the defendant did not violate the duty of explanation, which is regarded sound. However, the ground of the ruling was that the contract was concluded on condition that the contracting parties might not enter into the presence of each other, which is unreasonable. The contract was concluded on the Internet, but it might not be considerably difficult to explain the terms and conditions. Though a full explanation was given to compensation for refusal resulting from overbooking, it might not affect the conclusion of the contract. Therefore, it is not considered an important content to be included in the duty of explanation. In addition, overbooking is quite thinkable whether an explanation was given or not, because overbooking has traditionally been prescriptive in every airline and is common and usual in a contract.