중고 휴대폰 보상계약의 법적 성질과 규제 정합성에 관한 연구

Recently we have been watching the speedy development of the technology of a mobile phone and the shortening of its model changing term of consumers. When consumers want to upgrade their mobile phone model, they encounter the expense of upgrading that means the residual due of allotment of used mobile phone. If the used mobile phone can be sold expensively, it would be helpful to payment of the residual allotment and to buy a new model. Therefore, a service to help a consumer to be free from the obligation of paying the residual allotment of mobile phone came into being in mobile phone market. In this paper two types of service contract are examined, one of which is the ‘Premium Club’ provided by SK Telecom and the other one is ‘I-Phone Club’ provided by LGU+. Those contracts are common in characteristics of solving the expenses to change the model, that is, exemption or discharge of the residual allotment due for consumer and a limitation of that compensation in case of the mobile phone with the required standard. The subscribers to the contract, therefore, are not always to be able to enjoy the chance of exemption or discharge of the residual allotment due of used mobile phone. Taking into consideration of all the characteristics of price compensation contract of a used mobile phone, we consider that contract as a kind of insurance contract. Because it has the nature of an insurance contract such as the shift and diversification of risk, speculative contract, unequal considerations. As for the shift and diversification of risk in price compensation contract of mobile phone, the consumer shifts the risk of paying the expense for upgrading the model to service provider. And as for the speculative nature of that contract with unequal consideration, not all the consumers but the only consumers who meet the requirements in returning the used phone. and the consumer who does not meet the requirements can not retrieve what he or she has paid. If the price compensation contract of mobile phone is classified to an insurance contract, all the service contract should be provided by insurer, because only the insurance company can provide the insurance products under insurance business act. In case that general merchants provide the insurance products, the market order would be damaged and consumers can not be protected from the service provider who does not have the capacity to provide the service in near future. For example, as the I-Phone club service contract belongs to an insurance contract, that contract should be regulated by the Korean Insurance Business Act.