해외직접구매에서 발생하는 분쟁과 소비자의 보호: 국제사법, 중재법과 약관규제법을 중심으로

Recently, the number of Korean consumers, who are engaged in overseas direct purchases by internet (“Internet Purchase”) from foreign businesses such as Amazon or Alibaba, is constantly increasing. Such internet purchase contracts are normally governed by foreign law, and the disputes arising from the Internet Purchases are often settled in a foreign country by litigation or arbitration. Therefore, the protection of consumers in the Internet Purchases is very important theoretically as well as practically. However, there have not been enough discussions about these issues in Korea. In this article, the author deals with the protection of consumers in the Internet Purchases. First, the author deals with the protection of consumers in litigation, in the context of applicable law and international jurisdiction under the Private International Law Act of Korea (“KPILA”). Second, the author deals with the protection of consumers in arbitration under the Standard Contract Conditions Regulation Act (“Standard Conditions Act”) and the Arbitration Act of Korea. In summary, the KPILA offers some legal bases to protect consumers participating in the Internet Purchases, because in 2001, the legislators had included in the KPILA special rules designed to protect consumers in the context of international jurisdiction and applicable law. In contrast, the Arbitration Act does not include any special rules designed to protect consumers and leaves the task to the Standard Conditions Act, in which there exists a great legal uncertainty. This situation needs to be improved. There had been an attempt to improve the situation in the process of amending the Arbitration Act, which was amended in 2016, but unfortunately it had failed. More concretely, the author deals with the following issues: different types of Internet Purchases and contractual relationships (Chapter II.), the definition of consumers eligible for protection under the KPILA (Chapter III.), international jurisdiction in the Internet Purchases and the protection of consumers (Chapter IV.), applicable law in the Internet Purchases and the protection of consumers in the context of litigation (Chapter V.), arbitration agreement in the Internet Purchases and the protection of consumers (Chapter VI.). Finally, the author summarizes the discussions for each type of Internet Purchases (Chapter VII.). The author emphasizes that, rather than prohibiting a pre-dispute arbitration agreement in its entirety, we should introduce a reasonable consumer arbitration system, designed to offer an appropriate level of protection to consumers and to ensure the advantages of arbitration regime. To achieve this goal, we will have to do more systematic and in-depth research to find a desirable solution. In that process, we should pay attention to the definition and the scope of ‘consumers.’ With the definition of the so-called ‘passive consumers’ being expanded under the KPILA, we need to think about how to establish the definition and the scope of consumers under the Arbitration Act and the Standard Conditions Act. In addition, the author suggests that we try to improve the settlement system by utilizing and improving the consumer groups or consumer protection agencies in Korea, and through the cooperation of the consumer protection agencies of the concerned countries, since litigation and arbitration are not the only way to settle the disputes arising from the Internet Purchases.