일본 소비자계약법 5년의 성과와 평가

The Fruit and Evaluation of the Japanese Consumer Contract Act of 2000: A Viewpoint of Possibility on Consumer Private Law

This paper examines the Japanese Consumer Contract Act of 2000 as the following: First, for logical and historical background, this paper outlines the creation and the development of consumer private law in Japan. On these terms, it suggests that merely considering Consumer Contract Act as the Japanese legislative decision in the international flow of deregulation after the 1990’s may risk taking a short‐sighted view. Second, this paper takes account of the situation of application of the Consumer Contract Act. Until November 2006, 5 years after the Act enforcement had passed, over 150 cases had been in relation with the Act. And most of all, a case of the Supreme Court also appeared. Accordingly, it seems that cases of Supreme and District Courts have accumulated as many as their texts and trends can be arranged. Third, this paper gives an overview on the development of theories on consumer private law after the Act enforcement in Japan. Since the Act enactment, Japan has carried out: to introduce provisions regarding consumer private law into special laws such as “the Financial Service Sales Act of 2000” or “the Act on Specified Commercial Transactions of 1976”; to revise Consumer Contract Act for adopting the system of Consumer Organization Action (lawsuit by consumer organization); to prepare Consumer Basic Act regarding consumers as the subject of self‐reliance rather than as the object of protection; in addition, to keep investigating the main issues related with consumer private law. Fourth, this paper provides a viewpoint on evaluation of Japanese Consumer Contract Act. How to evaluate Consumer Contract Act is referred to as how to evaluate the means of private law (consumer private law) such as “consumer contract” in protecting consumers; at the same time, it offers hard theoretical examination subject in relation to the process of modernization of civil law. In particular, “German style model” to incorporate consumer private law into Civil Code and “Japanese style model” to establish Consumer Contract Act as a special law of civil law is debatable enough to put comparative legislation subject on how Korea responds to the issue. On the grounds of the above‐explanations, I will discuss the possibility and the subject of consumer private law in Korea. In sum, the subject of civil law required in this stage would be to precisely apprehend the actual state of Korean consumer private law via overviews on the specific fields of consumer private law and on the situation whether the “general provisions” of Civil Code connote the notion of consumer private law. Consequently, we may overhaul if a general system of consumer private law can be made, and if necessary, inquire into the possibility of uniting individual consumer private laws into civil law. In the current situation, it does not seem such an urgent issue whether Korea shall adopt the German style model (integrated model) or the Japanese style model (individual model). Rather, under the current legal situation, I think, Korea should make efforts to prepare consumer private law in advance.