국제사법 제27조의 해석론 및 관련 판례에 대한 평가

Consumers are getting active in participating in cross-border transactions including cross-border e-commerce transactions such as overseas direct purchases via the internet. As such kinds of transactions are increasing, various types of disputes like consumer damage may occur. When the disputes come to occur and if those are to be litigated in courts, the courts should determine the law applicable to the issues of the disputes according to the private international law rules. For the consumer contracts cases, the special provision is set forth in Article 27 of the KPILA which limits party autonomy. The reason why such special provision is provided for consumer contracts is to protect the rights of consumers whose counter parties are corporations. The consumers of international contracts in Article 27 of the KPILA mean passive consumers whose are usually the ones entering into contracts by solicitation of advertisements or orders from foreign countries directing at Korean residents. There is, however, a problem of the proper scope of the consumer contracts in Article 27. Under the Article 27 of KPILA, in addition to the usual sale contracts, it may be problematic what other kinds of contracts can be included in the scope of the Article 27 of KPILA. The recent Supreme Court judgment of August 26, 2014 (“Air France Case”) held that Article 27 is applicable to carriage contracts and service provision contracts in which the services are to provided for the consumer exclusively in a country other than the country where that consumer has habitual residence. This stance of the Supreme Court is against the text of the Rome Convention and the Rome I Regulation. The Korean Supreme Court seems to think that Article 27 is also applicable to the contracts of carriage and the contracts for service provision, where the services are to provided for the consumer exclusively in a country other than the country that consumer has habitual residence because the KPILA does not include any exceptions to the special rules applicable to consumer contracts. Based on historical analysis or teleological interpretation, however, the Supreme Court's attitude can be said as an extremely formal approach. Against this background, this article deals with the foreign legislations on the consumer contracts, the interpretation of the Article 27 of the KPILA, the appraisal of the related cases which contains the issue of whether gratuitous consumer contracts are covered, the issues as to services contracts provided only to the customers in the countries except for the place of the habitual residence of the consumers concerned. Depending on whether we treat contracts between customers and airlines as carriage contracts or as consumer contracts, the connecting factor can be different, such as the main office of the airline, the place of business, or the habitual residence of consumers. When we make clear the scope of the consumer contracts, the predictability of the parties will be more enhanced in determining the law applicable to the consumer contracts. Due to the ruling of the Supreme Court of Korea, which ruled that the contract of carriage can also be regarded as a consumer contract under Article 27, Korea can be classified as a country that does not comply with international standards such as the Rome I regulation, and confusion arises in practice. This is not desirable, and it is necessary to revise Article 27 of the KPILA in accordance with international standards such as the Rome Convention and Rome Ⅰ to prevent misunderstandings on the interpretation of Article 27 of KPILA.