국제사법상 소비자계약의 범위에 관한 판례의 소개와 검토: 제27조의 목적론적 축소와 관련하여

Nowadays, private international law legislations of many countries have introduced special rules applicable to consumer contracts in order to protect consumers participating in international transactions. This is an issue regarding the protection of weaker parties in the context of private international law. Article 27 of the Private International Law Act of Korea (“KPILA”), which took effect in July of 2001, is modeled after the “Convention on the Law Applicable to Contractual Obligations” (“Rome Convention”) of 1980 of the then European Communities. With the drastic increase in overseas direct purchases, the importance of special rules of the KPILA applicable to consumer contracts have drawn the attention of the public. The Rome Convention (Art. 5), which sets forth special rules applicable to consumer contracts, includes several exceptions for contracts of carriage and contracts for the supply of services, where the services are to be supplied to the consumer exclusively in a country other than that of which he has his habitual residence (“contracts for the supply of services in a foreign country”). The Rome I Regulations (Art. 6) have introduced more refined rules, while in principle, maintaining the position of the Rome Convention. However, the KPILA does not include any exceptions to the special rules applicable to consumer contracts, and because of it, various questions arise under the KPILA with respect to the proper scope of the consumer or the consumer contract. Recently, the Supreme Court Judgment of August 26, 2014 (Air France Case) held that Article 27 is applicable to contracts of carriage and contracts for the supply of services in a foreign country. In addition, the lower court judgment of the Seoul Central District Court on October 16 of 2015 held that Article 27 is applicable to gratuitous contracts (Google Case). The conclusions of the court judgments are true to the text of the KPILA. The author examines whether the scope of application of Article 27 can be restricted by the so-called “teleologische Reduktion (teleological reduction)(according to the Supreme Court judgment, teleological restrictive interpretation)”. This is an issue of the so-called “Methodenlehre” in the context of KPILA. The KPILA is an act with a high degree of abstraction and has more lacunae than the Civil Act and the Commercial Act, which have been refined over a long period of time. Korean judges, therefore, are required to take a more active role when interpreting or dealing with the provisions of the KPILA. More concretely, this article deals with the following issues: overview of the scope of Article 27 of the KPILA (Chapter Ⅱ.), whether the consumer is limited to natural persons (Chapter Ⅲ.), gratuitous consumer contracts (Chapter Ⅳ.), international contract of carriage (Chapter Ⅴ.), contracts for the supply of services in a foreign country (Chapter Ⅵ.), consumer contracts related to finance (Chapter Ⅶ.), and the teleological reduction of Article 27 in the context of methodological theory of law (Chapter Ⅷ.). Finally, this article discusses the relationship between Article 27 and Article 8, the general exception clause of the KPILA (Chapter Ⅸ.). In short, Korean judges should take a more active role when dealing with the provisions of the KPILA compared to when dealing with other acts. At the same time, it needs to be kept in mind that we should continue to pay attention to the legislation, so that the KPILA can keep pace with ever-changing circumstances.