소비자계약에서의 불공정성 - 미국 소비자계약법 리스테이트먼트 비양심성 규정을 소재로 -

The advancement of the digital economy and the ubiquity of standardized consumer contracts have made the refinement of judicial control mechanisms-aimed at ensuring substantive fairness in contract terms-an urgent legal imperative. In this context, Section 6 of the Restatement of the Law, Consumer Contracts, finally approved by the American Law Institute (ALI) in 2024, holds significant normative value as it modernizes the traditional doctrine of unconscionability. Section 6 explicitly presents an integrated analytical framework that combines “procedural unconscionability,” concerning defects in the contracting process, with “substantive unconscionability,” concerning the unfairness of the contract terms themselves. A core feature of this framework is the adoption of a “sliding scale” approach, wherein a strong finding of one element can compensate for a lesser degree of the other to establish unconscionability. The provision concretizes the criteria for substantive unconscionability by focusing on terms that cause “unexpected disadvantage” or involve “excessive risk-shifting.” Furthermore, it sophisticatedly captures the structure of modern consumer harm by incorporating the manner of information disclosure in digital environments and the concept of “cognitive salience” into the assessment of procedural fairness. Moreover, it is distinctive in that it grants courts flexible remedial powers-such as the deletion, modification, or substitution of terms-beyond a mere declaration of invalidity, thereby seeking a balance between consumer protection and the preservation of the contract. In contrast, the Korean Act on the Regulation of Terms and Conditions (ARTC) maintains a dualistic structure that strictly separates incorporation control (Article 3) from content control (Article 6 et seq.). Regarding content control, the ARTC relies on a list of specific grounds for invalidity and an abstract general clause. This structure reveals clear limitations in comprehensively regulating the complex interplay of procedural and substantive unfairness arising from information asymmetry, the mechanical acceptance of standard forms, and contracts mediated by digital platforms. Therefore, through a systematic analysis of Section 6 of the Restatement, this paper aims to derive normative implications for the interpretation and legislative improvement of the Korean ARTC, focusing on the integrated analysis of procedural and substantive elements and the adoption of flexible remedies.