국제사법상 소비자계약의 적용에 관한 문제

This article deals with the details of a consumer which is working as an important element in deciding the law applicable and the jurisdiction of the international consumer contract. Regarding the definition of a consumer, Rome Convention · Rome I · Japanese Private International Law have such definitions, but Korean Private International Law does not have. One Korean case apply the definitions of the Basic Law of a Consumer into the Korean Private International Law. Whether the contracting party knows the other party is a consumer is not certain but is interpreted as necessary in Rome Convention, Rome I, and Korean Private International Law. Japanese Private International Law specifies the contracting party should know that the other party is a consumer. Is a person to be regarded as a consumer whose action relates to a contract which he or she concluded not for the purpose of a trade and for the purpose of a trade? European Court of Justice has not treated such person as a consumer in several cases: a plaintiff who has concluded a contract with a view to pursuing a trade or profession, not at the present time but in the future(Benincasa v. Dentalkit(ECJ 3 July 1997 - Case C-269/95); a company who is an assignee of a consumer's rights arising from a consumer contract(Shearson Lehman Hutton v. TVB(ECJ 19 January 1993 - Case C-89/91); a natural person with close professional links to a company, such as its managing director or a majority shareholder, when he gives an aval on a promissory note issued in order to guarantee the obligations of that company under a contract for the grant of credit(Ceska sporitelna, a.s. v. Gerald Feichter (ECJ 14 March 2013 - Case C-419/11). According to ECJ, these persons could not be considered to be consumers, therefore the special jurisdiction rule for a consumer did not apply here. Some legal systems specify the counter partner of a counsumer (e.g. Rome I, Japanese Private International Law), but some systems leaves the burden of a court to interpret who is a counter partner of a consumer (e.g. Rome Convention, Korean Private International Law). In either system, it is basically understood that the contracting party of a consumer is a person who pursues his own business. The specific protection sought to be afforded to a consumer is based on the preposition that a consumer is a weaker party in comparison of his or her counter partner professionals economically and legally. Consequently, only contracts concluded for the purpose of satisfying an individual's own needs in terms of private consumption come under such protection. This is generally accepted trend in the law and the court decisions, since there must be balance of interests between a consumer and a professional.