2021 Volume 5 Issue 1 Pages 97-111
Contracts for the transmission of information by telecommunications have been discussed in some textbooks on civil and commercial law, but mainly in descriptive analysis, because they have been governed by special laws and covenants. However, it is necessary to add normative analysis to civil law from several points of view. One of them is the existence of mandatory laws. In addition, it is necessary to consider the dispositive provisions that govern such contracts as a baseline for considering the regulation of standardized clauses in the Civil Code and Article 10 of the Consumer Contract Act. Therefore, the purpose of this paper is to examine these normative considerations, especially in terms of the content of the standard for setting liability for default, through analogy with current regulations, the use of principles, and teleological interpretation. Specifically, I will deal with (1) the question of whether such contracts are consistent with typical contracts, and (2) the question of the distinction between contract for value and gratuitous contract in relation to such contracts. With regard to (1), we will consider whether it is better to classify it as a contract for work under the Civil Code, or to classify it as a deposit, taking into account the "custody" of data, or to classify it as a quasi-mandate which is a general provision for service contracts. In addition, I will analyze the reasons why the provisions of transportation in the Commercial Code stipulate special provisions of the Civil Code, and from this analysis I will examine the scope of the provisions of the Commercial Code through a teleological interpretation Then, as for (2), I will first summarize what the distinction between contracts for value and gratuitous contracts means for the civil law. Then, in light of how the subjective and objective criteria for classifying contracts for value and gratuitous contracts are considered in civil law, I will summarize what points may hinder the recognition of contracts-for-value in the telecommunication contracts. Then, we will examine whether it is possible to set the same standard of liability as in a contract-for-value even if the contract is classified as a gratuitous one.
