免責同意書の法的有効性

ばく

免責同意書でどこまで守られるの？

野外活動で同意書の内容だけでなく、その法的効力について関心が寄せられるところです。この記事では、免責同意書に関する法的理解を深めることを目的とします。

BtoCの事業の場合、消費者契約法が適用されます。同８条1項1号では事業者の責任を全面的に免除する条項を無効とする旨が規定されています。さらに、同2号では、故意又は重過失による責任を一部免除する条項は無効とする旨が規定されています。

具体例としては、「当ツアーの活動内で発生した人的・物的損害について、当団体は一切責任を負いません」という条項は、1号に抵触し、「ツアー中に起こった手荷物の損害については、5万円まで補償します」という条項は、主催者の故意重過失による場合を含んでいるため2号に抵触し、どちらも法的には無効なものとなります。以上より、事業者の損害賠償責任の一部を免除する条項のうち、当該事業者の軽過失によるものに対象を絞った条項のみが有効となりえます。

もっとも、消費者契約法10条では、消費者の利益を一方的に害する条項の無効を定めており、消費者庁逐条解説167頁によれば、『事業者の損害賠償責任の一部を免除する条項のうち、当該事業者の軽過失によるものについては、法第8条第1項の規定により無効となるものではないが、生命又は身体が重要な法益であることに照らすと、消費者の生命又は身体の侵害による損害賠償責任を免除する条項は、本条（法第10条）によって無効となる可能性があると考えられる』とされています。

参考になる裁判例として、札幌ドームでファールボールが観客を直撃した事件において、事業者が損害賠償責任を負う範囲を故意又は重過失に起因する損害以外は治療費等の直接損害に限定する条項について、法10条の規定により無効である疑いがある旨を判示したものがあります(札幌高判平成 28 年 5月 20 日判例時報 2314 号 40 頁)。以上より、アウトドア事業において主に問題となる生命身体の侵害についての免責条項は無効となる可能性が高いと考えられ、生命身体の損害以外、例えば携行品の損害に関して軽過失の場合に限った賠償上限額を定めるような規定のみが有効となりうるものと思われます。

参加者への注意喚起のためあるいは責任追及を躊躇わせる事実上の効果を狙いとして、このような書面へのサインを求める場合もあるようですが、コンプライアンス重視が叫ばれる昨今においては、免責同意書ではなく危険告知書のような書面で注意喚起を促すに留めるのが適切ではないでしょうか。

参考文献：
日弁連消費者問題対策委員会『コンメンタール消費者契約法（第２版増補版）』（商事法務、2015）
佐藤千春・朝日法学論集２８号９頁「スキューバダイビング講習会における事故」
消費者庁逐条解説
https://www.caa.go.jp/…/…/consumer_contract_act/annotations/

WRMJ理事
東京大学法科大学院３年　稲垣尊仁

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