전자상거래법상 청약의사의 확인과 소비자보호의 문제-디지털 음악시장의 자동결제상품 가격인상 사건에 대한 판결 검토

Electronic Commerce Consumer Protection Law is aimed not only to protect consumers in the electronic commerce and but also to raise credibility in this market. This law has important procedural provisions that providers should notify consumers of specific items of goods or services, and consumers also confirm their offers before conclusion of contracts and electronic payment. Among consumer protection measures, the article 8 of this law was revised in 2012. Contrary to the previous article 8, the revised article 8 provision newly adopted the notion of ‘the intent of offer’. Considering the process of electronic commerce contracts, at the initial contracts, consumers offer and then providers accept. It is clear that the intent of offer exists in this case. Therefore article 8 can be directly applied to this case. On the contrary, when providers suggest the change of pivotal conditions such as price, period and other important conditions, there could be some doubt that the article 8 can be applied on the reason that consumer’s offer does not exist. For example, when a provider decides to raise the price and notify this of consumers, consumers decide whether to accept the provider’s offer. This is the case that consumers not offer but only accept. So, article 8 might not include this case. Recently, three big providers in the digital music market raised the price due to their business strategies. However, they did not keep the process specified by article 8. So, Korea Fair Trade Commission(‘KFTC’) decided that providers violated article 8, and it imposed the corrective measures to providers. Providers appealed to this decision. Three antitrust tribunals of Seoul High Courts dealt with this case and they unanimously upheld KFTC’s decisions, but they suggested different reasoning for their conclusions. Reviewing KFTC’s decisions and the court’s decisions, the following implications could be suggested. First, the above decisions are that provider’s suggestion is invitation to offer, and the consumer’s approval is offer. However, considering contract law and long standing Supreme Court’s precedents, provider’s suggestion is close to offer, and furthermore consumer’s intent is near to acceptance. Second, reviewing the legislator’s intent, ‘the intent of offer’ should be interpreted as just intent of consumers in order to strengthen consumer protection. Whether consumer’s intent is offer or acceptance, the need to protect consumers could not be different. In the long run, article 8 should be revised to include this case.