소비자계약의 불공정성 판단에 대한 최근 일본의 판례 및 학설의 논의와 시사점 - 2022년 12월 12일 일본최고재판소 판결을 소재로 -

There are several areas in the Korean legal framework for regulating consumer contracts that require improvement. Among these, this article suggests ways to regulate unfair terms in consumer contracts under Articles 103 and 104 of the Civil Act and the invalidity of terms under Article 6 of the Act on the Regulation of Terms and Conditions. To this end, the article provides an overview of the Supreme Court of Japan decision issued on December 12, 2022, and the academic discussions surrounding it. Based on these findings, the article explores applicable insights for regulating unfairness in consumer contracts in Korea and presents its implications. The intent of this article is to propose methods and standards for assessing the fairness of consumer contracts, with some of these approaches potentially being newly introduced in Korea, thereby enhancing predictability for transaction parties. For this purpose, this article conducts research in the following sequence. First, the article examines the precedents on Article 10 of the Consumer Contract Act in Japan, which were issued before the 2022 Supreme Court decision, and explores relevant academic theories. It also reviews precedents prior to the Supreme Court ruling, which interpreted contractual provisions on whether a petition for injunction may be granted pursuant to Article 12(3) of the Consumer Contract Act, and examines the academic discussions related to these issues. Second, the article analyzes the content of the 2022 Supreme Court decision and examines the responses of legal scholars in Japan. Through this analysis, the article identifies how the reasoning of the 2022 Supreme Court decision differs from the reasoning in earlier precedents regarding the applicability of Article 10 of the Consumer Contract Act. Furthermore, it seeks to provide an in-depth understanding of how the Supreme Court interpreted the provisions of the contract in an injunction lawsuit filed by a qualified consumer organization. Third, to identify methods or standards for adjudicating the unfairness of consumer contracts that may be newly considered in Korea, the article presents the implications derived from the 2022 Supreme Court decision. For example, the Supreme Court ruling closely analyzed the textual terms of the contract, emphasized the disadvantages faced by lessees due to provisions such as termination without prior notice and presumed delivery of leased property, and assessed the unfairness of these provisions from various perspectives. The ruling provided detailed reasoning on the existence of contractual unfairness, particularly focusing on the clause allowing termination without prior notice, and this article highlights the implications and academic discussions related to these findings.