약관 중요내용의 설명의무와 그 면제사유에 관한 고찰– 대법원 2019. 5. 30. 선고 2016다276177 판결을 중심으로 –

This paper examines the legal doctrine on the business person’s duty to explain and the exemption of such duty, which has been developed by case laws. To be more specific, this paper focuses on the recent decision, the Supreme Court Decision 2016Da276177, dated May 30, 2019. The business person’s duty to explain, stipulated in Article 3 of the Act on the Regulation of Terms and Conditions, serves the function of (a) providing the customer with information, and (b) regulating unfair clauses in terms and conditions. The legal doctrine exempts the business person from such duty in the case where the need for above (a) or (b) is low. Considering the doctrine does not render the customer’s position adverse or the business person’s position favorable, the doctrine seems fair and reasonable enough. Two points are noteworthy here: “whether the clause was foreseeable without the business person’s explanation” ought to be judged from the perspective of the particular customer at issue, not of a general or average customer; when judging “whether the clause simply quotes or elaborates the provisions of statutes”, the fairness of the given provision should be taken into consideration.