은행거래약관의 구속력에 관한 소고 = A study on restriction of general conditions in banking

다국어 초록 (Multilingual Abstract)

It is general that today's bank transactions are made based on a fixed form using a variety of the terms and conditions provided by financial institutions. Bank transactions based on the conditions help to promote certainty, speed, and safety of transactions and are contributed to the growth and enhancement of the bank businesses.
However, when we get a glimpse of what is going on behind the veil of such terms and conditions of use, there is a matter of choice of acceptance or denial when a bank presents unilaterally the ‘terms and conditions’ of the agreement. Such unilateral agreement forces a customer to unfairly comply with the terms and conditions therein.
That is to say, firstly, a possibility of abuse of the bank’s agreement for transactions very high as the agreement is unilaterally prepared by a bank, not through mutual agreement or a third party. Banks focusing on only their profits tend to unfairly exclude, exempt or relieve from their legal obligations. Also, they provide a provision for arbitration to evade the court’s decision. This behavior may result in evasion from the application of the national laws and in damage of the judiciary’s power by monopolizing the legislative power to open or close the voluntary law. Secondly, if the terms and conditions are considered as an agreement, it implies a risky possibility of binding a customer regardless of its existence or contents.
If bank transactions based on the terms and conditions are misused in order to enhance the self-seeking position of banks and violate public interests, leading to further deepened economic unfairness, it is necessary to regulate such terms and conditions.
There are three ways to prevent customers from suffering a disadvantage due to the unfair transaction agreement. First, the regulatory policy of the terms prescribed by the governmental supervisory body. Transportation agreement and insurance clauses shall be subject to prior permission from the administrative body, but bank terms for transaction is not needed to do that. However, there exist some adverse opinions on such permission.
Second, the regulatory policy of the terms by the judicial body. The judicial regulation is designed to make a post regulation of any disputes arisen in relation to the terms by making a proper law decision when a concrete dispute on the terms is filed. This is the relief of an individual case, which is limited to a passive individual regulation, and different from the legislative regulation that is a general, prior regulation mechanism. However, the judicial regulation can also have generality by providing the application of the doctrine of stare decisis from a higher court to a lower court, e.g. the predictability of the results of decision at court in the future.
Third, the regulation of the terms by the legislative body. The legislative regulation on the terms and conditions has a preventive effect as a prior measure. This is the 'Law on Control of the Terms and Conditions' in Korea. The laws and regulations on the terms and conditions can be divided into a comprehensive legislation restrict all and any kinds of the terms and an individual legislation to restrict individual transactions. We adopt a general law to comprehensively control all kinds of the terms in Korea.
As is often the case with all systems, the terms and conditions for bank transaction can also be merits or demerits according to how they are used. When they are used in a proper fashion, the terms and conditions can be contributed to the philosophy of law in terms of the speed, safety of mass transactions. On the contrary, when they are used in an improper fashion, they can disable the liberty of contract and bring about a risk of anti-public interests by putting the customers who are economically weak under pressure.
Since the purpose of this paper is to improve unfair points specified in the terms and conditions, it is required that there are appropriate regulatory measures of the government to correct unfairness in the terms and conditions and bank's continual efforts to improve their terms and conditions autonomously.

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