소비자 계약에 있어 분쟁전 중재합의 관한 연구 –비교법적인 분석을 중심으로–

Nowadays most of the contracts between consumers and traders are concluded by terms and conditions provided by traders, which is more evident in electronic commerce that became more and more pervasive. The terms and conditions provided by traders usually contain arbitration clauses which aim to resolve the disputes between consumers and traders by arbitrations, but consumers are not aware of the implication thereof in most cases. Thus there appears the necessity to protect the consumer in the arbitration agreement between consumers and traders each with the dissymmetric bargaining power. In this regard legislations of various countries have in common in recognizing the interests of consumer protection in arbitration agreement, but they show the wide range of diversity in the extent of the protection. On the one hand Federal Arbitration Act of U.S. and U.S. Supreme Court decisions take the most favorable stance for the pre-dispute arbitration clause in consumer contracts, on the other hand E.U. Directive in Unfair Terms in Consumer Contracts and european countries’ legislations such as those of U.K., Germany and France, tend to restrict the validity of arbitration clauses in consumer contracts due to the dissymmetry in bargaining power. Nevertheless legislations in european countries differ in regulating the contracts and terms. In France the arbitration clause in a consumer contract is invalid and unenforceable against consumers according to Code Civil of France. In U.K. the validity of arbitration clauses depends of the value of the claim under the Arbitration Acts and in Germany, arbitration clauses in consumer contracts must be contained in a separate document signed by the parties themselves according to Code on Civil Procedure. Also Arbitration Act of Japan provides the right of consumers to revoke the pre-dispute arbitration agreement under specific requirements. However Korean Arbitration Act lacks the consideration on the arbitration agreement in consumer contracts and the adequate protection thereof, and is in need of legislative modification.