전기통신사업법상 사업자의 손해배상책임

Telecommunications Business Operators’ Compensation for Damages of Telecommunications Business Act

According to §33-2 (Compensation for Damages) of Telecommunications Business Act, a telecom business operator shall make compensations when he inflicts any damages on the users in the course of providing telecom services: Provided that such damages are the results of force majeure, or of intent or negligence of the users, the relevant liability for compensations shall be reduced or exempted. Both telecom business operators and users, however, are discontented with this compensation regulation. The reason why telecom operators have discontent is that the compensation regulation §33-2 is based on no-fault liability, unlike other compensation regulations which are based on fault liability. Since the telecom business operators cannot predict the boundary of liability due to no-fault liability, they want to revise the compensation regulation into fault liability. The reason why users are discontented with this compensation regulation is that the telecom business operators don't provide enough compensation according to the general agreement. Since the general agreement provides only triple compensation for damages based on mal-function service time, the real money for compensation is very small, e.g. around $1 per 8 hours. Since the compensation for damages regulation(§33-2) is based on fault liability, other compensation regulation of §37-3 which is based on fault liability is rarely used. According to §37-3, in case where a correction measure has been taken under §37(1), a person who is damaged by the prohibited act may claim for compensation against the telecom business operator who conducted the prohibited act, and the relevant telecom business operator may not shrink liability unless he can prove that there was no malicious intention or negligence. It is recommended that the compensation for damages regulation(§33-2) may be revised into fault-based regulation. While the fault based liability can give telecom business operators the benefit of predictability of compensation for damages, users can lose the benefit of no-fault liability. In that case, proof liability should be transfer from users to telecom business operators. Also, the compensation for damages should be based on real damages, not based on minimal triple compensation. If telecom business operator conducted inadequate services to save the money with malicious intention or gross negligence, the compensation for damages can be extended to not only service fee but also performance profit.