“CISG”에 내재하고 있는 미국법적 요소 분석 - 미국 “UCC”를 중심으로 -

가정준 국제거래법학회 2009 國際去來法硏究 Vol.18 No.1

The CISG and UCC have the same goal in regulating contractual relation, the pursuit of efficient resolution from contractual disputes. However, it is a little different how to obtain this goal between the CISG and the UCC. It is not easy to find out how the UCC has influenced the CISG rather than how different two contract laws are. This article has focused on how different two contract laws are and how the UCC has affected the CISG instead. In general, like American law, the CISG allows that an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance. Likethe UCC, the CISG article 16 also allows an offeror to make an irrevocable firm offer and irrevocable offer based on reliance by the offeree. The UCC allows only a merchant to make an irrevocable offer, a “firm offer” with some restrictions. The CISG rules related to the treatment of modified acceptance is very complicate to compared to the UCC rules. The CISG has followed the common law's mirror-image rule, an acceptance that added to or changed the terms of the offers is considered a rejection and a counteroffer. In practice this resulted in a last-shot rule, with each new form constituting a counteroffer until the last one was accepted by conduct. On the other hand, the UCC regulates that an additional or different term in the acceptance is deemed to be an acceptance. The additional terms in the acceptance may become part of the contract if expressly accepted by the offeror or automatically so long as the offer does not expressly limit acceptance to the terms of the offer, the additional terms do not materially alter the contract, and the offeror does not object to the additional terms. In practice, if the parties act as though there is a contract with disagreed terms, the UCC employs a knock-out rule so that the disagreed terms of the contract are not part of contract. Since Hadley v. Baxendale, the common law and the UCC have limited expectation damages under the foreseeability. The CISG has also followed such limited expectation damages under the foreseeability based on Hadley v. Baxendale. However, the UCC has more specific provisions how to compensate a non-breaching party based on case-by case. These provisions may help the CISG how to seek damages in the breach of contract because of the same background for a damage rule. In this paper, I have tried to find out that the CISG and the UCC are similar to each other by examining the originality of UCC and comparing the CISG and the UCC. In particular, I have founded the similarities from the methods to confirm the intent of a contractor, the legal effect of an offer and a modified acceptance on the form of contract, and the damage rules between the CISG and the UCC. In Korea, the comments on the CISG may be dependent on European resources. For better understanding the CISG, the study on the UCC is more necessary than ever since.

CISG상의 연착된 승낙과 청약의 취소통지 연착에 관한 연구 - 우리나라 민법에의 적용 가능성과의 연계연구

김기범(Gi-beom Kim) 한국국제상학회 2007 國際商學 Vol.22 No.1

  These days, late acceptance and late revocation notice of offer has become prominent in the consideration of which laws should be applied or interpreted as the governing law for parties in case of disputes in international trade. Through a comparison of CISG, Korean civil law, and Japanese civil law, this study has examined the "late acceptance" and "late revocation notice of offer" which has frequently brought bottlenecks due to no justified regulation on the CISG, even if the offerer and offeree have been influenced by each other. Also it compared the relationship between general principles of late revocation notice of offer in the CISG, Korean civil law and Japanese civil law. The aim of this research lies in focusing on some parts of Korean civil law which need to be revised based on these comparisons. To achieve the purpose of this study, related literatures have been compared, reviewed and analyzed.

계약의 성립과 청약의 구속력

김명숙 ( Myeong Sook Kim ) 고려대학교 법학연구원 2009 고려법학 Vol.0 No.54

Under the traditional model of contract formation, a contract are made by mutual assents or agreement. Contracts are the product of the will of the parties, so that it is the willingness to be bound of the parties that justifies legal recognition of enforceable contractual rights and obligations, or an remedy in breach of contracts within the ratification of the law. To resolve the disputes whether or not an offer and an acceptance were matched, the law looks for an offer by an offeror and an acceptance of the terms of the offer by the offeree. It may be difficult to state with confidence whether a particular statement was an offer, an invitation to treat, or a part of continuing process of negotiation between the parties because of its varying degrees of the process. Much will depend on how far a court is willing to go in filling in any gaps left by the parties. But the law cannot impose an agreement on the parties against the intention of the parties in case of vague or incomplete terms though it may purport to the interest of the reasonableness and the fairness. Korean Civil Law § 527 states an offer cannot be revoked. Though an offer may be resulted in the formation of a contract, an offer is only a proposal to enter into a contract to make an power of acceptance, not a contract. So before an acceptance by the offeree within the time of an acceptance has occurred, an offer may be revoked. The irrevocability of an offer may give rise to doubt about the freedom of the contract. The revocability of an offer may be purchased by the power of acceptance created by an offer based on the intention of the offeror. The intention may be implied. But if the offeree has communicated an acceptance to an offeror, or an offer invites to a contractual undertaking, it is reasonable for an offeree to rely on the offer and the offeree has acted in reliance on the offer, an offer cannot be revoked.

청약과 청약의 유인의 구별에 관한 일고 : 상품광고에 관한 해석론의 동향을 중심으로

이재목(Lee Jae-Mok) 부산대학교 법학연구소 2011 법학연구 Vol.52 No.1

이 글은 청약의 개념, 청약과 청약의 유인의 구분을 둘러싼 논의 상황을 정리하고자 작성되었다. 최근에는 광고를 통한 주문 거래가 많은 비중을 차지하고 있다. 이 때 다양한 형태의 상품광고의 법적 성질을 어떻게 볼 것인가가 특히 문제된다. 전통적인 입법이나 해석론과는 달리 유럽계약법원칙(PECL)은 ‘재고나 공급능력이 있는 한’이라는 유보가 붙은 청약으로 추정한다. 이 기준이 간명해 보이기는 한다. 그러나 청약으로 판단하여 매도인에게 법적 책임을 부과해야 할 일정한 경우들을 위와 같은 유보에 의해 청약의 유인으로 취급하는 오류를 범한다. 또한 다양한 형태의 이익충돌 문제를 해결하는데도 내재적 한계가 있다. 따라서 청약의 유인으로 보는 것이 원칙이라고 하는 기존의 입법태도나 해석론에 동의한다. 그리고 Schlechtriem이 제시한 양자의 구분 기준과 논거는 국내에서 보다 진전된 해석론을 전개함에 있어서 귀중한 소재가 될 수 있다고 본다. This paper was written in order to reconsider exiting discussions about concept of offer, division standard of offer and ‘invitatio ad offerendum’ new views on. Recently, order-driven trading through advertisement is forming a great part. In this case, how to see legal characteristic of several types of merchandise advertisement is especially important. Against to traditional legislation or interpretation theory, PECL presumes reservation that is ‘until the stock of goods, or the supplier's capacity to supply the service’ attached to subscription. Whatever this standard seems to be simple and clear, it makes a mistake which is treating some cases that put a liability to a seller as ‘invitatio ad offerendum’ by reservation. In addition, there is a immanent limitation to resolve several types of conflict of profits. Therefore, I agree with existing legislative attitude and interpretation theory which insist that understanding as 'invitatio ad offerendum' is principle. Also, I think that division standard and reasons for an argument suggested by Schlechtriem can be a valuable material to develop advanced theory in Republic of Korea.

Formation of contracts for the international sale of goods under Korean law and the CISG

이병문 한국무역학회 2017 Journal of Korea trade Vol.21 No.3

Purpose – The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach – In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings – The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value – This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

CISG에서 청약에 관한 연구

하충룡(Choong-Lyong Ha),고승만(Seung-Man Go) 한국무역학회 2011 貿易學會誌 Vol.36 No.1

영미법상 계약교섭의 결렬에 따른 책임

엄동섭 한국민사법학회 2007 民事法學 Vol.35 No.-

In modern society many contracts require long-term negotiations. Consequently the disputes between pre-contractual parties arising out of the failure of negotiations occur more increasingly. And the resolution of these disputes has assumed increasing importance. However common-law and civil-law systems have arrived at different solutions. According to the civil-law tradition, especially according to German legal theory, many Korean legal scholars have advocated to adapt the concept of ‘culpa in contrahendo' (fault in contracting) developed by Rudolf von Jhering and now codified in §311 II BGB to resolve these disputes. However Korean courts have applied the rule of torts with regards to this kind of cases. This article introduced the precontractual liability in Anglo-American Contract Law as an reference for further discussion in Korean legal theory. Above all, this article followed the theory of Farnsworth, the most famous American scholar in contract law. According to his theory, the possible grounds for the precontractual liability can be grouped under four headings: (1) unjust enrichment resulting from the negotiations; (2) a misrepresentation made during the negotiations; (3) a specific promise made during the negotiations (promissory estoppel); (4) an agreement to negotiate in good faith. This article concluded that this type of approach to the precontractual liability is available for the further development of theory in Korean legal system as well as in Anglo-American legal system.

선박우선특권의 실행방식 변경 및 피담보채무자의 범위 제한에 관한 고찰 - 정기용선자를 중심으로 -

권성원 ( Sung-won Kwon ) 한국해법학회 2017 韓國海法學會誌 Vol.39 No.2

실무상 선박우선특권 실행은 선박의 국적을 불문하고 선박에 대한 임의경매로 실행하도록 한다. 또한 선박우선특권이 인정되는 피담보채권에 해당하면, 비록 정기용선자의 채무라고 하더라도 선박우선특권을 인정해 왔다. 선박우선특권제도가 나라마다 다른데도 이처럼 일률적으로 판결 없이 경매를 진행할 수 있도록 하는 것과, 성문의 근거규정이 없는데도 정기용선자의 채무에 대해서까지 선체용선에 관한 규정을 유추 적용하여 선박우선특권을 인정하는 것은 위법·부당하다. 선박우선특권은 공시되지 않는데도, 그 효력도 저당권에 우선한다. 그런데도 우리 실무와 같이 폭넓게 선박우선특권의 효력을 인정한다면, 다른 채권자나 담보권자의 권리를 침해할 수 있게 된다. 그러므로 선박우선특권에 관한 규정은 가급적 엄격하게 해석하고 그 적용도 제한하여야 한다. 이 논문은 선박우선특권의 적용을 제한할 당위적인 필요성을 검토하고 그에 대한 구체적인 제한원리를 제시하는데 그 목적이 있다. 이를 위해서 물권법정주의와 선박우선특권의 실행을 위해 인정하는 경매청구권에 대해서 살펴본다. 선박우선특권을 담보물권으로 인정하는 우리나라 법제 하에서는 선박우선특권에 대해서도 물권법정주의의 원칙이 엄격히 적용되어야 한다. 따라서 선체용선의 관련 규정을 유추적용하여 정기용선자의 채무에 대해서 선박우선특권을 인정해왔던 기존의 해석론은 물권법정주의를 위반하는 것이므로 폐기되어야 한다. 또한 우리나라와 동일하게 선박우선특권을 취급하지 않는 외국적 선박에 대해 서까지 국적선과 동일하게 선박임의경매로 선박우선특권을 실행하도록 하는 실무도 변경되어야 할 것이다. Under the Korean law practice, a maritime lien on a vessel shall be executed by means of public auction to the vessel concerned to the maritime lien and this rule shall apply for all vessels arrested in Korea regardless of the vessel’s flag. Pursuant to Precedents reported, creditors by maritime lien may go to a public auction to the concerned vessel without obtaining a written judgment from a competent court. On the other hand, under the situation of no statutory article in the commercial code, is it generally accepted that a series of claims against a time charterer shall be secured by maritime lien by analogy with Article 850 of the commercial code. However, it is illogical and unjust that in some jurisdictions such as Panama, USA and England, Maritime lien is a right to establish jurisdiction at the port where a vessel calls so that it is closer to a procedural right and that under the Korean property act, any right that is neither prepared in the statute nor acknowledged as a customary law by the court is not a real right. Under the true construction of the Korean law, it is groundless that a certain article in the Bareboat Charter chapter can apply analogous to a maritime issue concerned with Time charter, since it may result in breaching and infringing the said Numerus Clausus principle, the basic and fundamental rule of real rights. Furthermore, Korean Law does not realize a certain way to make Maritime lien public albeit maritime lien shall prevail over a pledge right and a mortgage. For this reason, if the scope of maritime lien holder is broadly extended or admitted without being supported by a statute, it may give rise to harm the rights of other creditors and other mortgagees. Accordingly, articles of Maritime lien are to be strictly construed and limitedly applied to a particular matter. The purpose of this article is to make it clear why the construction and application of articles of maritime lien are done limitedly and strictly focusing on some legal issues arising out of Time charter and further to make a suggestion of a new practice for execution of Maritime lien. For that purpose, this article will firstly reconsider the principle of Numerus Clausus and the law of claim to request auction of a designated vessel so as to execute a certain credit secured by maritime lien. And then, this will point out that there is necessity in changing the current law practice of ship arrest for maritime lien into two ways, that is to say, Claim to request auction to the vessel concerned to maritime lien is for vessels having Korean flag and Ship arrest for provisional attachment is for foreign vessels. Further, this article will demonstrate logically that as a matter of true construction of the Korean law, Maritime lien may not be conferred on any claim arising out of a time charter by analogy with certain article of Bareboat charter.

CISG에 따른 청약의 효력발생과 청약의 회수

김진우(Kim Chin-Woo) 동아대학교 법학연구소 2009 東亞法學 Vol.- No.45

電子商去來 等에서의 消費者保護에 관한 法律의 問題點 檢討

鄭埈雨(Chung, Joon-Woo) 한양법학회 2004 漢陽法學 Vol.16 No.-