CISG상 장애에 관한 사례연구

오현석,Hyon-sok Oh 한국국제상학회 2015 國際商學 Vol.30 No.2

CISG 제79조 면책의 사유로서 장애는 그 개념이 어떤 국내법에서도 찾아볼 수 없으며 표현 자체에 불확실성이 내재되어 있다. 이로 인해 각 국 법원은 자국의 유사한 법적 개념 으로부터 추론하여 불이행당사자의 면책여부에 대한 판결을 내리고 있다. 그러나 CISG의 주석에 따르면 장애는 각 국가에서 규정하고 있는 불가항력, 이행곤란, 목적달성불능과는 다른 개념으로 보고 있다. 이처럼 CISG의 장애가 추구하는 목적을 현실에 적용시키기에는 다소 한계가 있다. 한편 CISG에 의하여 규율되는 사항으로서 CISG에서 명시적으로 해결되 지 아니하는 문제는 CISG 제7조에 따라 국제사법의 일반원칙에 따라 해결할 수 있다. 국제사법의 일반원칙으로서 PICC는 장애에 대응되는 법리로 불가항력과 이행곤란을 규정 하고 있다. 특히 PICC는 이행곤란의 객관적이고 명확한 기준을 제시함으로써 면책기준에 관한 해석상의 혼란을 피하고 있다. 또한 불가항력과 이행곤란을 불이행과 이행의 장에서 구분하여 규정함으로써 그 효과를 계약의 해소와 계약의 유지라는 이분법적으로 접근하고 있다. 본 연구는 CISG의 장애와 PICC의 불가항력과 이행곤란을 비교 ․ 분석함으로써 CISG와 PICC의 상호관계에 관한 시사점을 제시하고자 한다. Purpose : The purpose of this study is to analyze the legal notions about impediment. There are different legal notions about it such as force majeure, hardship, frustration in domestic legal system. Research design, data, methodology : This paper compares the legal requirements between ‘impediment’ in CISG and ‘force majeure and hardship’ in PICC and then present relationship among these legal notions. The analytic data are CISG, PICC and related legal cases and specially review about applicability of cases. Results : The most of the related research results have come to the conclusion that‘impediment’ of CISG is interpretative problems. Although CISG intend to unify international sales contract laws, it makes more confused result to use impediment. The PICC make the matter of impediment clear. Conclusions : If there are satisfied the legal requirements of ‘impediment’, it could be exempted form liability for failure to perform any of his obligations. The legal requirements are uncontrollability, unforeseeability and unavoidability. These requirements have to be piled up one on another. The PICC enact force majeure and hardship separately and also the PICC can be expected to serve as legal instruments for the interpretation and gap-filling of CISG article 79.

국제상거래법상 Force Majeure와 Hardship에 관한 고찰

오현석(Hyon Sok OH) 韓國貿易商務學會 2016 貿易商務硏究 Vol.69 No.-

There is legal relation between both parties after contract formation. The parties are liable for performing each duties but a party is not liable for a failure to perform the duties if party proves that the failure was due to the force majeure. The forec majeure has different concepts and legal principles such as change circumstance, hardship, frustration, impediment and so on. Therefore, it need to analyze a historical background and their presence in various domestic legal systems. Although the CISG describes Art.79 impediment instead of using the force majeure, the impediment has several interpretative limitation. The CISG pursue to harmonize divergent legal concepts and principles from various national laws and legal systems but the harmonization of legal systems make the impediment more confused. The article goes on to analyzes about limitation of the impediment and reviews to examine the force majeure and hardship in PICC. Thus both parties of international contract insert hardship clause in order to prevent the problem of judgment in a court or a court of arbitration under impediment of CISG.

국제물품매매에서 손해배상청구권에 관한 비교법적 고찰

오현석(Hyon-Sok OH) 한국무역상무학회 2018 貿易商務硏究 Vol.77 No.-

This study compares the SGA and CISG to find out the difference of the criteria for calculating damages. and it intends to give some important points in trade practice. The damages is intended to compensate the victim for the breach of contract but there are differences between SGA and CISG as follow. First, the SGA and CISG have the same purpose of claiming damages. Both laws and regulations are subject to a full indemnification to compensate for the breach of the contract by the amount equivalent to the loss suffered by the victim. Second, in the general principle related to the calculation of damages, both law enforcement officials are required to be able to predict damages caused by breach of contract. In the case of SGA, however, a foreseeability test or remoteness of damages is required for the relationship between the contract violation and the loss. In other words, it can be said that the causal relation between the contract violation and the damage is strictly applied rather than the CISG. Finally, both laws and regulations of SGA and CISG have a big difference in criteria for calculating damages. In the CISG, after the contract is canceled, it is classified according to the existence of the alternative transaction and the damage amount is calculated based on the contract price. On the other hand, the SGA estimates the loss based on the market price at the delivery of the goods, reflecting the change in the market price instead of the contract price of the goods.

CISG상 계약당사자에게 공통적으로 적용되는 규정해석과 판결례에 관한 연구

오현석(Hyon-Sok Oh),심종석(Chong-Seok Shim) 한국무역학회 2013 무역학회지 Vol.38 No.5

Related to this thesis, CISG contains three provisions, applicable to both buyers and sellers, that address avoidance or partial avoidance of contract or suspension of performance under a contract in certain special situations specifically, where a party has in some fashioned threatened future non-performance of its obligations or where there is a breach of an instalment contract. Thus under the first two Arts of the Section, an aggrieved party may suspend its obligations or avoid the contract before the time for performance is due if the conditions of these articles are satisfied. Where the parties have entered into a contract by which the goods are to be delivered in instalments, an aggrieved party may avoid the contract with respect to a single instalment, future instalments, or the contract as a whole as provided in the Art. 73. Art. 71 and 72 are concerned with predicting whether there will be a breach but the preconditions for the more drastic remedy of avoidance are more stringent than those for suspension, both as to the seriousness of the predicted breach and the probability that the breach will occur. The notification requirements of the two provisions also differ. Art. 72 requires reasonable prior notice only if time allows, and excuses the notice if the other party has declared that it will not perform; Art. 71, in contrast, requires immediate notice of suspension with no exceptions. Art. 72 entitles an aggrieved party to avoid a contract before the date for performance if the contract is for a single delivery, while Art. 73 provides special rules on avoidance with respect to future instalments if the contract is an instalment contract. Several decisions recognize that, in an instalment contract, the aggrieved party might act under either article as to future instalments. Finally Art. 79, which is in the nature of a force majeure provision, may relieve a non-performing party from liability for damages if the failure to perform was due to an impediment that meets certain requirements.

A Comparative Study on Change Circumstances in International Commercial Contracts

오현석(Oh, Hyon-Sok) 한국무역상무학회 2009 貿易商務硏究 Vol.44 No.-

This Study attempts to compare and analyze on Principle of Change Circumstances under th CISG, PICC and PECL which are covered international commercial contract. In many international commercial contract, time is very important because delays in performance are sanctioned heavily by substantial penalty clauses. When change in circumstances affects contract performance, the contract will often not be suspended or terminated. Therefore, principle of change circumstances is being prepared of fluidity of contract environment and its effect in general. Taking into consideration the problems relating to the renegotiation or adaptation in the cases of radical change of circumstances where the CISG applies, it is suggested that the contracting parties should make clear their intentions, that is, whether they will provide for the possibility of renegotiation where the price of goods has been altered by inserting a hardship clause or for the possibility of mutual discharge from liability in the cases of economic impossibility or hardship by inserting a force majeure clause. Such provision will be desirable especially in situations where there is a long term contract, the price of goods sold tends to fluctuate in the international commerce, or where especially in contracts subjected to arbitration, the parties subject their contract to legal sources or principles of supranational character. Therefore, this study has shown that the hardship provisions in the CISG, PICC and PECL has similarities to each a validity defense and an excuse defense. it was provisions that CISG governs this issue in Article 79, PICC Article 6.2.1, 6.2.2, 6.2.3 and PECL Article 6.111.

국제상사계약상 신의성실의 원칙

오현석(Oh, Hyon Sok) 성균관대학교 법학연구소 2012 성균관법학 Vol.24 No.2

This paper discusses the principles of good faith under the contract for the international sale of goods. In contract law, the implied covenant of good faith and fair dealing is a general presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in every contract in order to reinforce the express covenants or promises of the contract. Article 7(1) of CISG, the principle of good faith is a general principle of the CISG. But the good faith provision in article 7(1) should be used only in interpreting the Convention. It is a principle that permeates the Convention, providing the policy basis for many provisions. In addition, provisions of the CISG reflect a foundation in good faith through its variants such as reasonableness and fair dealing. In the meantime, Article 1.7(1) of PICC supports the imposition of a positive obligation of good faith on contracting parties. It provides that each party must act in accordance with good faith and fair dealing in international trade. The PECL and its good faith provisions are the product of a committee without law-making authority, and are designed as a statement of derivative general legal norms rather than a description of any existing body of law. Thus, the PECL lacks formal legal authority, although the drafters envision such authority arising through adoption or use of the Principles by legislatures, judges, arbitrators, and contracting parties. The importance of mutual confidence between parties to international sales transactions can hardly be underestimated. To ensure such confidence, all involved must possess an unambiguous understanding of the obligation to act in good faith. Unfortunately, formulating a clear picture of this obligation is not always easy given the varying constructions and inherent ambiguities which surround the notion of good faith. It is time when good faith becomes a principle recognised internationally. It will be the turning point of our juridical regime.

電子貿易에서 制度上 認證시스템의 問題點에 관한 考察

오현석(Oh Hyon Sok) 한국무역상무학회 2004 貿易商務硏究 Vol.23 No.-

Electronic transaction using electronic documents be carried without direct person to person meeting, there is the possibility to use other's identity illegally without notice and to verity authenticity of transaction. It is very hard to find out that the electronic documents on the process of submitting is forged documents or not and also has much difficulty in maintaining transmitting secret. Therefore, to solve such problems on electronic transactions, certification system with cryptography skill are inevitably necessary. Also there is needed legal base in the electronic document as functional equivalent of the paper document. Recently there are so many commercial certification service provider(CPS) such as Identrus, Bolero, TEDI but their establishment of CPS, certification process, guideline and so on are different each CPS. Therefore, this kind of situation can make user confuse. To introduce and develop the electronic certification in the international electronic commerce not domestic electronic commerce, it need to authorize and operate certification authority under the uniform regulation base. But, because the laws and guidelines that related to electronic certification system are different among the nations and international organizations, it need to compare laws and guidelines. In conclusion, the most important thing to resolve problems surrounded certification and develope certification system in the international electronic commerce make uniform rule of international electronic certification to recognize internationally from each nation or at least, need to harmony laws and guideline in each nations.

OECD 정보기술전망(2006)에 대한 지표평가와 ICT 국제무역수지 및 정책개발에 대한 동향

오현석(Hyon-Sok Oh) 한국관세학회 2007 관세학회지 Vol.8 No.1

Regarding to the OECD information Technology Outlook 2006, Following the strong recovery in am-04, ICT(Information and Communications Technology) goods trade settled back to steady growth in 2005 and is expected to grow at around the same rate as manufacturing trade in am. However, rapidly increasing commodity prices, coupled with ongoing price declines for ICT equipment, disguise the solid performance of ICT goods trade (in volume) in 2005 and 2006. In 2004, OECD exports of ICT goods reached a new peak in current USD, driven by growth in electronic components, audio and video and other ICT-related equipment OECD imports also achieved a new high, driven by growth in communication, audio and video equipment However, at 13.2%, the share of ICT goods in total goods trade is only a little above that of 1996. Computer and information services trade has been more dynamic in value terms. Ireland is by far the leading OECD exporter of these lef services and software goods, with combined exports of over USD 20 billion in 2004. ICTs are increasingly recognised as a source of innovation and economic growth, and national ICT strategies have pushed towards further integration of IT and economic development policies to meet emerging challenges. To maximise policy effectiveness, countries are increasingly co-ordinating policy both vertically, through the layers of government, and horizontally, across ministries and agencies, to achieve more coherent and effective cross-ministry and agency planning and improve delivery of more targeted policies and programmes. As countries have achieved higher levels of basic ICT access, skills and content, the focus has shifted to deepening these achievements through broadband, more advanced skills and more sophisticated content.

전략물자 수출통제의 현황과 전망에 관한 고찰

오현석(Oh, Hyon Sok),양정호(Yang, Jung Ho) 한국무역상무학회 2009 貿易商務硏究 Vol.42 No.-

Over the last several years, regarding to the strategic items, the international community has seen governments make more formal commitments to adopt and implement effective export controls to counter the proliferation of weapons of mass destruction(WMD). United Nations Security Council Resolution 1540(that is「S/RES/1540」) stands as the most important of these commitments. Many UN members already have export control laws and regulations in place to prevent the proliferation of weapons of mass destruction. Many members also participate in a variety of formal and informal international arrangements to coordinate their export control efforts. Nonetheless, each of these countries has its own unique legal framework for export controls. This generates considerable diversity in the construction of the specific national legal authorities. Over the last few years, however, a consensus over what constitutes the key elements of effective legal authorities for export controls has begun to emerge. Evidence for this development comes in the identification of best legal authorities or principles at several multilateral conferences on export controls.

인공지능의 지식재산권 보호에 관한 연구

오현석(Sok-Hyon Oh) 한국인터넷전자상거래학회 2018 인터넷전자상거래연구 Vol.18 No.1

The purpose of this study is to evaluate whether the invention and literary work of artificial intelligence can be the subject of intellectual property rights such as patent rights and copyright, and to prepare the legislative guidelines for the revision of the law in the future. In today`s age, boundaries of each field are broken down and are looking for new things by convergence. We are trying to integrate with other fields to find original new ideas, and there is artificial intelligence in this age. Under current intellectual property laws, artifacts are not attributed to artificial intelligence. Artificial intelligence is creating things that are equal to or better than human inventions and works. Only humans are making inventions and works without much mental effort using these artificial intelligences. Therefore, intellectual property law should be changed according to changes of the age and technology. Through this research, it is necessary to secure the legal stability of patent rights and copyrights by attributing inventions and works created by artificial intelligence to artificial intelligence.