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STATUTES

THE REPUBLIC OF KOREA

Volume

REGULATION OF STANDARDIZED CONTRACTS ACT

Act No. 3922, Dec. 31, 1986

Amended by Act No. 4515, Dec. 8, 1992

CHAPTER Ⅰ GENERAL PROVISIONS

Article 1 (Purpose)

The purpose of this Act is to protect consumers and promote the harmonious improvement of the nation’s welfare by preventing enterprise from preparing and circulation standardized contracts containing unfair terms and conditions that constitute abuse of their negotiating position through the regulation of standardized contracts containing unfair terms and conditions.

Article 2 (Definitions)

(1) In this Act, the term “standardized contracts” means the general terms and conditions of a contract, regardless of their name, type, or scope, prepared in advance by one party in a certain form for the purpose of entering into a contract with a large number of persons.

(2) In this Act, the term “enterprise” means a person who is a party to a contract and offers a standardized contract to another party

Article 1 ~ 2

as the content of the contract.

(3) In this Act, the term “customer” means a person who is a party to a contract and has received from an enterprise an offer to incorporate a standardized contract into the contract.

Article 3 (Obligation to Specify and Explain Standardized Contracts)

(1) Prior to entering into a contract, an enterprise shall explain to its customers the content of a standardized contract in a way that it would generally be expected for the type of contract in question and shall, upon the request of the customer, deliver a copy of the standardized contract to the customer to help the customer understand the standardized contract: Provided, That this does not apply to a standardized contract which is approved by an administrative agency under other Acts and which is provided for in the Presidential Decree of the Act because of the need to effect a speedy transaction.

(2) An enterprise shall explain the important particulars of a standardized contract so that customers can understand them: Provided, That this does not apply where such an explanation is extremely difficult due to the nature of the contract.

(3) If an enterprise enters into a contract in violation of the provisions of paragraphs (1) and (2) above, it may not claim that the pertinent standardized contract forms a part of the contract.

Article 3

Article 4 (Precedence of Individual Agreement)

If an enterprise and a customer agree on a matter that is addressed in standardized contracts in a manner that is different from the standardized contracts, such agreement shall prevail over the standardized contracts.

Article 5 (Construction of Standardized Contracts)

(1) A standardized contract shall be construed impartially in accordance with the principle of trust and good faith and shall not be construed differently depending on the Customer.

(2) If the meaning of a standardized contract is not clear, it shall be construed in favor of the Customer.

CHAPTER Ⅱ UNFAIR CLAUSES IN STANDARDIZED CONTRACTS

Article 6 (General Principles)

(1) Any clause in a standardized contract which is not fair or is contrary to the principle of trust and good faith shall be null and void.

(2) Any clause in a standardized contract that falls under any of the following subparagraphs shall be presumed to be unfair:

1. A clause which

Article 4 ~ 6

is unreasonably unfavorable to customers;

2. A clause which customers would have difficulty anticipating in light of various circumstances such as the type of transaction, type of contract, and etc.; or

3. A clause which is so restrictive of essential rights under a contract that the purpose of the contract may not be achieved.

Article 7 (Prohibition of Exemption Clause)

Any clause of a standardized contract concerning the liability of contraction parties that falls under any of the following subparagraphs shall be null and void:

1. A clause that exempts an enterprise from liability for intentional wrongdoing of gross negligence on the part of the enterprise, its agents, of employees;

2. A clause which limits, without substantial reason, the extent of damages payable by the enterprise; or

3. A clause which, without substantial reason, excludes of limits the warranty liability of an enterprise, tightens requirements that customers must meet to exercise their rights under the warranty of, where the enterprise has provided a sample of the subject matter of the contract or has indicated the quality of performance, and etc. of the subject matter, excludes or limits the warranty for the subject matter.

Article 7

Article 8 (Predetermination of Amount of Damages)

Any clause of a standardized contract which obligates customers to pay unreasonably heavy damages, including but not limited to, excessive liquidated damages for delay, shall be null and void.

Article 9 (Cancellation or Termination of Contract)

Any clause of a standardized contract concerning the cancellation or termination of a contract which falls under any of the following subparagraphs shall be null be and void:

1. A clause which excludes of limits the right of customers to cancel or terminate the contract under Acts;

2. A clause which grants an enterprise the right to cancel or terminate the contract which is not provided for by the Act or which reduces the requirements enterprises must meet to exercise the right to cancel or terminate the contract as provided for by the Act, therefore putting customers at an unreasonable disadvantage;

3. A clause which, without substantial reason, obligates customers to pay excessive restitution if they cancel or terminate a contract, or which unreasonably provides for customers to waive their claim to restitution;

4. A clause which unreasonably reduces the restitution obligation of an enterprise or its duty to pay damages in the event of

Article 8 ~ 9

cancelling or terminating a contract; or

5. A clause in a contract providing for a continuous creditor-debtor relationship which might put customers at an unreasonable disadvantage by providing for a duration that is unreasonably short long by allowing implied extensions or renewals of the contract.

Article 10 (Performance of Obligations)

Any clause of a standardized contract concerning the performance of obligations which falls under any of the following subparagraphs shall be null and void:

1. A clause which, without substantial reason, gives an enterprise the power to unilaterally determine or change the content of performance; or

2. A clause which, without substantial reason, allows an enterprise to unilaterally suspend performance of its obligations on its behalf.

Article 11 (Protecting Interest of Customers)

Any clause of a standardized contract concerning the interest of customers which falls under any of the following subparagraphs shall be null and void:

1. A clause which, without substantial reason, excludes or limits a customer’s rights of defense, offset of damages, etc., which are provided for by Act;

Article 10 ~ 11

2. A clause which, without substantial reason, deprives customers of the right to refuse to perform their obligations until a set date of time;

3. A clause which unreasonably limits a customer’s right to execute contracts with a third party; or

4. A clause which, without any justifiable reason, allows an enterprise to divulge confidential information of customers it has obtained in the course of doing business with customers.

Article 12 (Deemed Expression of Intent)

Any clause of a standardized contract concerning an expression of intent which falls under any of the following subparagraphs shall be null and void:

1. A clause which provides that once a certain act of omission has occurred, Customers shall be deemed to have expressed or to not have expressed a certain intent: Provided, That this does not apply where customers are notified that if they fail to express their intent within a given period, which is a considerable length of time, the customers shall be deemed to have expressed or not have expressed their intent, or where it is impossible to give such a notice due to (unavoidable) circumstances;

2. A clause which imposes unreasonably strict restrictions on the requirements for or the way in which customers may express their

Article 12

intent;

3. A clause which provides, without substantial reason, that the intent of an Enterprise, which may materially affect the interest of customers, is deemed to have been communicated to customers; or

4. A clause which provides for an unreasonably long or indefinite term during which an enterprise may express its intent which may materially affect the interest of customers.

Article 13 (Additional Obligations of Agents)

If a contract is entered into by an agent of the customer, any clause in a standardized contract which imposes on the agent an obligation to carry out the customer’s obligations in whole or in part should the customer fail to perform his obligations shall be null and void.

Article 14 (Prohibition against Lawsuits, etc.)

Any clause in a standardized contract which puts customers at an unreasonable disadvantage by prohibiting customers from filling a lawsuit, or by requiring customers to agree to a certain venue by imposing the burden of proof on customers without any justifiable reason, shall be null and void.

Article 15 (Limitation on Application of this Act)

With regard to standardized contract which are commonly used internationally

Article 13 ~ 15

of to which some other special reason applies, the application of the provisions in Articles 7 through 14 above may be limited according to the clause or type of business if the Presidential Decree provides for such limitations.

Article 16 (Special Principle of Partial Nullity)

In the event all of a part of the clause in a standardized contract fails to constitute a contract under Article 3 (3) or are null and void under Articles 6 through 14, the contract shall remain effective with respect to the remaining portion of the standardized contract: Provided, That it is impossible to realize the objective of the contract, or the contract is unreasonably unfavorable to one party, the entire contract shall be null and void.

CHAPTER Ⅲ REGULATION OF STANDARDIZED CONTRACTS

Article 17 (Prohibition on Use of Unfair Clauses in Standardized Contracts)

No enterprise to which any of the following subparagraphs applies shall include in a standardized contract any of the unfair clauses referred to in Articles 6 through 14 (hereinafter referred to as “unfair clauses”):

1. An enterprise which qualifies as a market-dominating enterprise under

Article 16 ~ 17

Article 2 (7) of the Monopoly Regulation and Fair Trade Act;

2. An enterprise which enters into contracts by unreasonably taking advantage of its position;

3. The contract is for the supply of goods or services to the public and it is difficult for the customer to change the terms and conditions of the standardized contract because of the urgency of speed with which the contract is executed;

4. If a customer is effectively forced to incorporate a standardized contract into a contract because of the significantly superior bargaining position of the enterprise which is a party to the contract or because of the lack of enterprises the customer can choose from; or

5. Given the nature or purpose of a contract, cancelling or terminating the contract is impossible or such cancellation or termination causes serious monetary damage to the customer.

[This Article Wholly Amended by Act No. 4515, Dec. 8, 1992]

Article 17-2 (Corrective Measures)

(1) If an enterprise breaches Article 17, the Fair Trade Commission may order it to take such measures as are necessary to correct the breach, including but not limited to, deleting or revising the

Article 17-2

pertinent clause in t standardized contract.

(2) If an enterprise which does not quality under any of the subparagraphs in Article 17 incorporates an unfair clause into a contract, the Fair Trade Commission may, in order to establish orderly transactions, recommend that it take such measures as are necessary to correct the breach, including but not limited to, deleting or revising the unfair clause.

(3) When ordering or recommending that the measures necessary to correct breaches under paragraphs (1) and (2) above be taken, the Fair Trade Commission may, if necessary, also recommend that the enterprise which engages in the same kind of business as that of the Enterprise concerned should not use the same unfair clause.

[This Article Newly Inserted by Act No. 4515, Dec. 8, 1992]

Article 18 (Government-Approved Standardized Contracts, etc.)

(1) If the Fair Trade Commission deems that a standardized contract which has been prepared by an administrative agency or approved by an administrative agency under other Acts violates the provisions of Articles 6 through 14, the Fair Trade Commission may inform the administrative agency concerned of the violation and request it to take measures necessary to correct it; and if the Fair Trade Commission deems that the standardized contract of a financial institution established under the provisions of the Banking Act violates provisions of Articles 6 through 14, the Fair Trade Commission may inform the Bank

Article 18

Supervisory Board, which was established under the Bank of Korea Act, of the violation and recommend that it take measures necessary to correct the violation.

(2) If a request or recommendation for correction is made pursuant to the first part of paragraph (1) above, no order or recommendation for correction pursuant to the provisions of Article 17-2 (1) and (2) shall be made.

[This Article Wholly Amended by Act No. 4515, Dec. 8, 1992]

Article 19 (Petition for Review of Standardized Contracts, etc.)

Any person who has a legal interest in a clause in a standardized contract of any consumer organization registered under the Consumer Protection Act, the Korea Consumer Protection Board, or any trade association may file a petition with the Fair Trade Commission to request that the Fair Trade Commission determine whether or not a given clause is in violation of this Act. <Amended by Act No. 4515, Dec. 8, 1882>

Article 19-2 (Petition for Review of Standardized Contracts)

(1) In order to establish sound order in business transactions and to prevent the common use of any standardized contract containing unfair terms and conditions enterprises, or trade associations may adopt a standardized contract which may be used as a standard in a certain field of trade (hereinafter referred to as “standard standardized contract”).

(2) Any enterprise

Article 19 ~ 19-2

or trade association may file a petition with the Fair Trade Commission to request that the Fair Trade Commission determine whether or not a standard standardized contract as provided for under paragraph (1) is in violation of this Act.

[This Article Newly Inserted by Act No. 4515, Dec. 8, 1992]

Article 20 (Investigation)

If the Fair Trade Commission deems it necessary for the purpose of rendering an order or a recommendation for correction pursuant to Article 17-2 (1) and (2), of if it receives a petition under the provisions of Article 19, the Fair Trade Commission may conduct an investigation in order to determine whether a given standardized contract violates this Act. <Amended by Act No. 4515, Dec. 8, 1992>

Article 21 (Filling of Petition for Review)

Any petition pursuant to Article 19 shall be filed in writing with the Fair Trade Commission. <Amended by Act No. 4515, Dec. 8, 1992>

Article 22 (Statement of Opinion)

(1) Before deliberating on whether the content of a standardized contract is in violation of this Act, the Fair Trade Commission shall give notice to the pertinent enterprise or any interested party who has engaged in a transaction under the standardized

Article 20 ~ 22

contract to the effect that the standardized contract will be reviewed by the Fair Trade Commission. <Amended by Act No. 4515, Dec. 8, 1992>

(2) The concerned party or interested person who has received notice under paragraph (1) above may attend hearings of the Fair Trade Commission and state his opinion or submit the necessary materials. <Amended by Act No. 4515, Dec. 8, 1992>

(3) If a standardized contract to be reviewed by the Fair Trade Commission has been approved or is to be approved by an administrative agency under other Acts, the Fair Trade Commission may request that the pertinent administrative agency state its opinion before the Fair Trade Commission commences its review. <Amended by Act No. 4515, Dec. 8, 1992>

Article 23 (Disclosure of Unfair Clauses in Standardized Contracts)

The Fair Trade Commission shall prepare and keep a list of the standardized contract which the commission, upon its review, has found to be in violation of this Act and shall disclose the list to the public when necessary. <Amended by Act No. 4515, Dec. 8, 1992>

CHAPTER Ⅳ Deleted

Articles 24 through 29 Deleted. <by Act No. 4515, Dec. 8, 1992>

CHAPTER Ⅴ SUPPLEMENTARY PROVISIONS

Article 23

Article 30 (Scope of Application)

(1) This Act shall not apply to standardized contracts relating to PART Ⅲ of the Commercial Act, the Labor Standards Act, or contracts involving non-profit business as provided for in the Presidential Decree.

(2) Deleted. <by Act No. 4515, Dec. 8, 1992>

(3) If there are any special provisions under other Acts with respect to standardized contracts that are used in a specific business sector, those special provisions shall take precedence over the provisions of this Act.

Article 30-2 (Application of Monopoly Regulation and Fair Transaction Act)

The provisions of Articles 42 through 45 of the Monopoly Regulation and Fair Trade Act shall apply mutatis mutandis to the deliberations and decisions of the Fair Trade Commission under this Act, and the provisions of Articles 53 through 55 of the same Act shall apply mutatis mutandis to appeal procedures, the institution of lawsuits and exclusive jurisdiction of lawsuits.

[This Article Newly Inserted by Act No. 4515, Dec. 8, 1992]

Article 31 (Criteria for Approval)

Article 30 ~ 31

In the event an administrative agency approves a standardized contract under other Acts or a standardized contract is reviewed by a review organization established under other Acts with respect to a particular business sector, the provisions of Articles 6 through 14 shall provide the criteria for such approval and review.

Article 31-2 (Consultant)

(1) The Fair Trade Commission may appoint a consultant if it is necessary for the purpose of reviewing a standardized contracts under this Act.

(2) The appointment of a consultant under paragraph (1) and other matters necessary therefore shall be governed by the Presidential Decree.

[This Article Newly Inserted by Act No. 4515, Dec. 8, 1992]

CHAPTER Ⅵ PENALTY PROVISIONS

Article 32 (Penalty Provisions)

Any person who violates any order issued under the provisions of Article 17-2 (1) shall be subject to imprisonment for not more than two years or a fine not exceeding one hundred million (100,000,000) won.

[This Article Wholly Amended by Act No. 4515, Dec. 8, 1992]

Article 31-2 ~ 32

Article 33 (Vicarious Liability)

If any representative of a corporation or any agent of employee of a corporation of individual has committed a violation as set forth in Article 32 relating to the business of the said corporation or individual, the fines provided for in the same article shall be imposed on the corporation of the individual as well as on the perpetrator.

[This Article Wholly Amended by Act No. 4515, Dec. 8, 1992]

Article 34 (Administrative Fine)

(1) Any person who refuses to cooperate in, disrupts or eludes an investigation as provided for in Article 20 shall be punished by an administrative fine not exceeding five million (5,000,000) won.

(2) Any Enterprise which violates the provision of Article 3 (1) or (2) shall be imposed and collected by the Fair Trade Commission as provided for in the Presidential Decree.

(3) The administrative fine provided for in paragraphs (1) and (2) above shall be imposed and collected by the Fair Trade Commission as provided for in the Presidential Decree.

(4) Any person who is dissatisfied with the imposition of an administrative fine under paragraph (3) above may appeal to the Fair Trade Commission

Article 33 ~ 34

within thirty (30) days after being notified that such a fine has been imposed.

(5) When a person subject to an administrative fine imposed under paragraph (3) above has appealed in accordance with paragraph (4) above, the Fair Trade Commission shall, without delay, give notice to the competent court which shall, upon receiving the notice, decide the case pursuant to the Non-Contentious Case Litigation Procedure Act.

(6) If neither the appeal is filed nor the administrative fine paid within the period as specified in paragraph (4) above, the administrative fine shall be collected pursuant to the example of disposition on default of national taxes collected.

[This Article Newly Inserted by Act No. 4515, Dec. 8, 1992]

ADDENDA

Article 1 (Enforcement Date)

This Act shall enter into force on July 1, 1987.

Article 2 (Transitional Measure)

This Act shall apply to the contract to be concluded by the contractual terms and conditions for the first time after this Act enters into force.

Article 3 (Transitional Measure concerning Continuous Contract)

Addenda

This Act shall apply to the portion to be executed after the enforcement of this Act, under the contractual terms and conditions on the contract aiming at a production of a relation of continuous obligation.

ADDENDA <Act No. 4515, Dec. 8, 1992>

Article 1 (Enforcement Date)

This Act shall enter into force on March 1, 1993.

Article 2 (Transitional Measure)

A recommendation for correction issued by the Minister of the Economic Planning Board or a request for review filed with the said Minister in accordance with the preceeding provisions at the time when this Act enters into force shall be deemed a recommendation for correction issued by the Fair Trade Commission or a request for review filed with the said Commission under this Act.

Addenda

REGULATION OF STANDARDIZED CONTRACTS ACT
- Articles
- Addenda
  - ADDENDA
  - ADDENDA <Act No. 4515, Dec. 8, 1992>

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