전자거래관련법상의 기술중립성에 관한 비교법적 고찰

A Comparative Legal Study on the Concept of Technological Neutrality in the Regime of Electronic Commerce

In the legal sense, 'technological neutrality' is used as a principle for interpreting laws as well as a legislation policy. Under the concept of technological neutrality, laws should be interpreted neutrally regardless of certain means or technologies so far as the laws do not specify any particular technology or means; a legislation for governing a certain aspects of legal relationship may specify a certain technology or means or, give the same legal effect regardless of the technologies and means. In the regime of electronic commerce, establishing the principle of technological neutrality may affect severely on the legal status of the concerned parties as well as the economic interests. Recent legislations on the regime of electronic commerce have been frequently criticised and changed. That's mainly because the changing speed of technologies and society is too rapid for us to anticipate or catch up with the changes, not because those legislations were wrong from the beginning. Under such a situation, the principle of technological neutrality could be an ample solution for a desirable legal system for regulating global electronic commerce. In this paper, several legislations on electronic commerce such as those of UNCITRAL, European Union, Japan, United states and Korea are examined. According to the results, the concept of the technological neutrality has been established in most countries including Korea. Such a trend is very desirable, but some points should be born in mind. Any particular technologies should not be allowed to enjoy or stand an unfair advantages or disadvantages in transactions or competition; however, the people or country that cannot help using inferior technologies should not be forced to hold all the risks and liabilities.