해외 숙박 플랫폼을 통해 체결한 숙박시설이용계약에서의 환불불가약관에 대한 연구 - 대법원 2023. 9. 21. 선고 2020두41399, 2021두35124 판결을 중심으로 -

In the case of online platform terms and conditions, the Supreme Court ruled that the Fair Trade Commission’s corrective order was illegal because the non-refundable terms and conditions were not provided by the online platform. The issue in this case is whether a correction order can be imposed on an overseas business operator under the E-Commerce Act, whether an online platform operator is a business operator under the Terms and Conditions Regulation Act, and whether the non-refundable terms and conditions are unfair. First, it is a matter that public law regulations can also be applied when judicial and public law regulations exist in a law determined by the governing law through private international law. Private international law is a law that determines the governing law and jurisdiction over legal acts with international factors, and the Fair Trade Commission and the court’s judgment of applying public law regulations is not valid in that it applies only to judicial regulations. Second, it is a question of who presented the non-refundable terms and conditions to consumers, and if the contents are unfair, it is possible to request the platform operator to correct them only through the Terms and Conditions Regulation Act. According to the recognized facts, it was found that the business operator presented the non-refundable terms and conditions to the consumer, and accordingly, under the Terms and Conditions Regulation Act, the business operator is not a platform operator but a business operator. Therefore, the court’s judgment is valid because the platform operator is not a business operator under the Terms and Conditions Regulation Act. Finally, it is a matter of the unfairness of the non-refundable terms and conditions. According to court’s judgment that the accommodation facility use contract is a mail order under the Electronic Commerce Act, consumers can withdraw their subscription until they use the accommodation facility, and in this case, the accommodation business operator cannot charge the consumer a penalty. Therefore, the lower court had to determine that the non-refundable terms and conditions violated Articles 18 and 35 of the Electronic Commerce Act and were invalid and unfair. However, the judgment of the court is not valid in that it has not been reviewed.