온라인 플랫폼 약관상 국제재판관할합의에 관한 연구 - 서울고등법원 2024. 10. 10.자 2023라21101 결정 등에 대한 검토를 중심으로 -

This article analyzes the decisions that addressed, as a main issue, an exclusive international choice-of-court agreement designating a foreign court contained in YouTube’s Terms of Service, and distills the private international law issues that emerge from them. First, even where an exclusive forum selection clause exists, Korean courts could affirm jurisdiction over provisional measures that have a substantial need to be sought in Korea, pursuant to Article 14(2) or Article 2 of the Korean Private International Law. Further, the term “provisional measures” in Article 14 should be construed to encompass interim protective relief aimed at preserving rights by maintaining the factual or legal status quo, including the preservation of evidence; however, where a satisfaction-type provisional injunction effectively anticipates a judgment on the merits, it is sound to regard the exclusive forum clause as continuing to apply. Second, in determining—at the permissibility stage—whether an exclusive choice-of-court agreement violates Korean public policy, the touchstone is whether the agreement is manifestly unreasonable or unfair. The relevant considerations include procedural unfairness arising from disparities in bargaining power and the circumstances of contract formation, as well as whether the clause was reasonably notified to the parties and whether its operation may produce effects tantamount to depriving one party of a genuine opportunity to litigate. Third, with respect to whether a contract qualifies as a consumer contract under Article 42 of the Private International Law Act, consumer status is limited to natural persons; where, after opening a channel for non-business purposes, an individual intentionally begins to generate revenue—such as by joining the YouTube Partner Program—and the scale of that activity is not negligible, it is difficult to regard that person as a consumer. Fourth, Article 14 of the Korean Act on the Regulation of Terms and Conditions can serve as a practical benchmark for determining the permissibility of an exclusive choice-of-court clause in favor of a foreign court even where the governing law is foreign, and it may also function as a norm that concretizes the public-policy standard under Article 8(1)(4) of the Korean Private International Law. Accordingly, while the results reached by the decisions are sound, their reasoning should be strengthened by engaging more fully with the systematics of the amended Korean Private International Law and with the relevant comparative-law analyses.