전자상거래에서의 소비자보호에 관한 연구

Abstract

The information society service, mainly composed of electronic commerce, has not only altered forms of service supply and consumption, but has also fostered significant changes of the relationship between service suppliers and consumers.

From the consumer's standpoint, consumption benefits that have been brought or will be brought forth by electronic commerce are obvious. Briefly, they can be classified into four categories: more convenient service, lower prices, more diversified choice, and more economical consumption.

While electronic commerce can lead to so many facilities, it has caused consumers to hesitate before the attractive online transaction market. In the new consumption environment of this market, consumers do not know enough about the authenticity of relevant information, the procedures of signing a contract, the mechanism of modification, supplement, and correction of contract clauses, the solution of disputes, or the protection from swindles and privacy violations. Thus, they have much misgiving about the safety and operation of electronic commerce, and prefer to hold back from it.

The cases of damages and losses to consumers in electronic commerce are steadily increasing. As an effort to protect consumers in electronic commerce, international organizations and foreign countries have been working out for establishing or renewing relevant laws and regulations.

All the OECD member countries has taken these measures after the OECD had passed Guidelines for Consumer Protection in the Context of Electronic Commerce in December in 1999 in order to start to establish or perfect each country's consumer protection law system in electronic commerce.

Nevertheless, China has not yet made any law for the protection of consumers in the context of electronic commerce. There is the first law in the area of electronic commerce. It is Electronics Signature Law of 2004. However, it does not involve the contents of a consumer protection. Therefore, relevant provisions for consumer protection in China can be found in Product Quality Law, Advertisement Law, Law for Countering Unfair Competition, Contract Law etc., including Law on the Protection of the Rights and Interests of Consumers of 1994. In consideration of the characteristics of electronic commerce, the Chines laws of today cannot sufficiently protect consumer' rights in rapidly changing information society even though some local laws related to the protection of consumers in electronic commerce have been made in some places like Beijing and Shanghai where electronic commerce is developing faster.

As the object of study, this article deals with the electronic commerce of the Business to Consumer which is the most basic form of electronic commerce. As the range and method of study, this article reviews and analyzes legal problems relating to consumer protection by investigating and comparing the legislation of international organizations and several developed countries, and the present lawmaking condition of China. In conclusion, this article points out the shortage of the Chinese lawmaking and makes the following lawmaking suggestions in order to perfect consumer protection law and system of electronic commerce in China.

First, some lessons should be drawn from the mode of Korea and EU in lawmaking formality which adopts the government predominance mode. It is not proper for China to adopt either the mode of reducing the government intervention as far as possible or the American mode which encourages industries to hold self-control. The reason is that China belongs to continental law system countries, converts the stage of planned economy into that of market economy, and lacks the social credit system and citizen's consciousness.

Second, uniform and specialized laws should be made in China. Considering the characteristics of electronic commerce, the relevant laws for the protection of consumers like Advertisement Law, Contract Law, Product Quality Law, and Law on the Protection of the Rights and Interests of Consumers are not sufficient for the protection of consumers in electronic commerce.

Third, more concrete clauses which have strong applicability should be made in lawmaking skill. The legal concepts, related principles and standards should be defined clearly. For example, in regard to the protection of personal information it is not proper to define briefly that anyone should not infringe upon a person's privacy. At first, the concept of personal information and the principles of protection of personal information should be defined clearly.

Fourth, a special authoritative government body should be quickly established from the viewpoint of execution of laws. At present, the Department of Consumer Rights Protection has been established under the General Administration for Industry and Commerce which has been in charge of the registration of enterprises and maintaining market order in order to protect the rights and interests of consumers. However, this Department has not provided the strong measures for protecting the rights and interests of consumers.

Fifth, in respect of measures for protection of consumers, both an administrative remedy and a judicial remedy should be considered. In addition, both the Chinese law and the international legislation should be harmonized in view of the globalization of electronic commerce. The emphasis should be placed on establishing the Alternative Dispute Resolution(ADR) System and the Online Dispute Resolution(ODR) System as an administrative remedy. As a judicial remedy, specific jurisdiction principle for protection of consumers should be considered. In addition, especially with regard to the protection of personal information, relevant provisions of international institutions and EU should be reviewed and introduced legislatively.

Sixth, either the principle of special protection of consumers in EU and Korea or minimum contact theory in USA may be reviewed legislatively. However, the case law has not been established and the system for the protection of consumers in electronic commerce has not been sufficient in reality in China. In the future, China needs to adopt the principle of special protection of consumers in EU and Korea when China amends Civil Procedure Act.