국제물품매매에서 주계약과 종계약

허해관 한국무역상무학회 2024 貿易商務硏究 Vol.101 No.-

In international sale of goods, the sale contract is the main contract against which the contracts of carriage and insurance and the letter of credit (L/C) become subordinate contracts. The sale contract, the main contract, controls the subordinate contracts, therefore the subordinate contracts must conform with the sale contract. If the subordinate contract is contrary to the sale contract, it constitutes a breach of the sale contract, and the party in breach is responsible for the nonconformity under the sale contract. Against this background, this paper examines in what points the subordinate contracts should be in conformity with the sale contract. First, the conformity of the carriage contract concluded by the seller and transport documents provided by the seller is examined. Next, this paper examines the conformity of the L/C provided by the buyer for his payment of price, and lastly, the conformity of the insurance contract concluded by the seller and insurance documents provided by the seller under CIF and CIP contracts.

미국(美國) 계약법(契約法)하에서 소위 "쉬링크랩라이센스" 계약(契約)에 관한 일고찰(一考察)

허해관,Hur, Hai-Kwan 한국무역상무학회 2003 貿易商務硏究 Vol.20 No.-

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certain procedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.

CISG상 FOB 계약

허해관 한국무역상무학회 2022 貿易商務硏究 Vol.95 No.-

The legal relationship between the parties to a sales contract consists of various matters. Among them, in particular, Incoterms deal with the matter of delivery of goods by the seller and the matters closely related thereto. The other matters that are not covered by Incoterms are covered by the applicable law of the sale contract, including CISG. Therefore, The establishment of the legal relationship between the parties in an international sale contract asks us to read both Incoterms and CISG together. Based on this understanding, this paper looks into the legal relationship between the seller and the buyer in international sale contracts to which the FOB rules of Incoterms 2020 and CISG are applied. This paper first discusses with the issue of delivery of goods under FOB contract, that is when, where and how the delivery is to be performed by the seller. Next, this paper moves to the issue of the contract of carriage under FOB contract and considers the FOB buyer's obligation to conclude a contract of carriage and to notify the seller of it. Based on them, this paper points out a principle taken by the FOB rules of Incoterms 2020 that the risk of loss or damage to the goods transfers from the seller to the buyer when they are delivered by being placed on board the vessel nominated by the buyer who made the contract of carriage. Also this paper points out that the same principle governs the matter is of allocation of costs between the FOB seller and buyer. Further, this paper further considers the exceptions to the principle by looking into the premature transfer of risk and the burden of additional costs by the buyer, which occur when the failure of delivery of goods has been caused by the buyer or the vessel chosen by the FOB buyer. 매매계약 당사자간 법률관계는 다양한 사항으로 이루어지는데 인코텀즈는 그 중에서 오직 물품의 인도 및 그와 밀접한 관계가 있는 사항만을 다루고 그 밖의 사항은 그 준거법(CISG 포함)에 위임하고 있다. 따라서 국제물품매매계약상의 당사자 사이의 법률관계를 파악할 때에는 인코텀즈와 CISG를 함께 입체적으로 살펴야 한다. 인코텀즈와 CISG의 적용상 우선순위는 당사자간 합의, 인코텀즈, CISG 순이다. 이러한 배경에서 본고는 CISG가 적용되는 국제물품매매계약 중에서 인코텀즈상의 FOB가 적용되는 계약에서 매도인과 매수인 사이의 법률관계가 어떠한지를 고찰한다. 이를 위하여 본고에서는 먼저 FOB 계약상 물품인도의 문제를 다루면서 매도인의 물품인도 방법과 장소, 시기 및 물품인도에 관한 매도인의 통지의무 그리고 매수인의 수령의무를 고찰한다(II). 이어 본고는 FOB 계약상 운송계약체결에 관한 문제를 검토하는데, 여기서 FOB 매수인의 운송계약체결의무와 운송에 관한 통지의무, 그리고 FOB 매도인의 예외적 운송계약체결의무와 운송에 관한 정보제공의무 등을 고찰한다(III). 나아가 본고는 FOB 계약상 위험이전의 문제로서 위험이전에 관한 인도주의와 위험의 예외적 조기이전을 고찰하고(IV), 이어 보험과 수출입통관 및 서류제공의 문제를 고찰한다(V). 끝으로 본고는 FOB 계약상 비용분담의 문제로서 비용분담에 관한 인도주의 원칙과 그에 대한 예외로 매수인의 추가비용부담, 그리고 의무자의 이행비용 자기부담 원칙, 협력요청자가 상대방의 협력제공비용을 부담한다는 원칙을 고찰한다(VI).

UNIDROIT 원칙상 채권양도에 의한 국제매매 대금채권의 활용과 그에 관한 법률관계

허해관 한국중재학회 2022 중재연구 Vol.32 No.2

본고에서는 UNIDROIT 원칙상 금전채권의 양도에 관한 여러 가지 법적인 문제를 살펴보고자 한다. 이를 위하여 이하에서는 채권양도의 개념과 효력, 법적 구조 그리고 채권양도의 법률관계에서 중요한 요소인 양도통지, 채권양도의 여러 가지 모습과 실무상 활용을 고찰하고(II), 이어 채권양도에 따른 몇 가지 법률적 문제로서 채무자가 적법한 항변을 갖는 경우, 양도인의 이중양도가 있는 경우, 양도통지 수령 전에 채무자가 상계를 하는 경우, 양도 당시에 이미 채권이 소멸하여 존재하지 않는 경우, 채무자가 양수인이 아니라 양도인에게 지급을 하는 경우, 채무자가 지급불능이거나 지급거절을 하는 경우에 그 당사자간 법률관계가 어떻게 되는지, 그에 관한 실무상 유의점은 어떤 것이 있는지를 고찰한다.

국제건설계약상 청구보증

허해관 국제거래법학회 2013 國際去來法硏究 Vol.22 No.1

This article begins with looking into the concept of the demand guarantee and the structure of its transactions, and examines a number of types of demand guarantees that have been used in international construction contracts in order to secure obligations of the employee, the contractor, in favor of the employer, the owner. They include tender guarantees, performance guarantees, advance payment guarantees, retention money guarantees and warranty guarantees. A demand guarantee in defined as an irrevocable undertaking issued by the guarantor (usually a bank) upon the instructions of the applicant (the contractor) to pay the beneficiary (the owner) any sum that may be demanded by that beneficiary up to a maximum amount stated in the guarantee, upon presentation of a demand complying with the terms of the guarantee. Further, this article discusses and shows that (i) a demand guarantee is independent both of the rights and obligations arising under the international construction contract (called the underlying contract) and of the contract existing between the applicant and the guarantor and (ii) the demand guarantee is documentary in character. Therefore, the guarantor’s payment obligation solely depends on the beneficiary’s complying demand, the determination of which is to be done without the investigation of external facts and the guarantor’s duty to examination is limited to apparent good order of the documents presented. However, if it is beyond doubt that any presented document is falsified or the demand has no conceivable basis, that is there is fraudulent or abusive demand, exceptionally, the guarantor is to be entitled to refuse payment and the applicant may apply for an injunction against the guarantee restraining him from effecting payment. Finally, this article analyses the legal relationships between the parties, by dividing them into the relationship between (i) the applicant and the beneficiary, (ii) the guarantor and the beneficiary, (iii) the applicant and the guarantor, and (iv) the counter-guarantor and the guarantor.

국제물품매매협약상 계약해제의 효과

허해관 국제거래법학회 2011 國際去來法硏究 Vol.20 No.1

The avoidance of contract under CISG transforms the original contractual relationship into a winding-up or restitutionary relationship. When the contract is avoided, both parties are released from their primary performance obligations,while provisions in the contract that govern the rights and obligations of the parties after avoidance survive the avoidance. Under the winding-up relationship, the buyer has to return to the seller the very goods supplied by the seller; the seller has to return the price to the buyer in the currency of payment, whether this is different from the currency of account or not. If both parties are bound to make restitution, it has to be done concurrently. If only one party has performed, then restitution takes place unilaterally. These retitutionary obligations on avoidance are contractual and are not based on the unjust enrichment rules of any applicable domestic law. The place of restitution is to be determined by the general principles on which the CISG is based. The general principles can be found in the CISG provisions governing the place of delivery (Article 31) and the place of payment (Article 57)under the original contract. Thus, if, at the time of the avoidance of the contract the parties knew that the goods were at a particular place, the buyer have to return the goods at that place (Article 31(b)), and, in other cases, at the place where the buyer had his place of business (Article 31(c). The seller have to return the price to the buyer at the buyer’s place of business Article 57(1)(a). The costs of restitution should be borne by the unexempted non-performing party. For instance, the cost of carriage for shipping the goods back to the seller should be borne by the unexempted buyer if the seller avoided the contract, but by the unexempted seller if the buyer avoided the contract. As to the time of restitution,the unilateral restitution by the seller or buyer, as a general principle under Article 7(2), has to take place within a reasonable time upon or after avoidance of the contract. Upon avoidance, by way of concomitant equalization of benefits, the seller refunding the price to the buyer has to also pay interest on it from the date on which the price was paid, while the buyer has to account to the seller for all benefits which he has derived from the goods. As the seller’s duty to pay interest is based on the theoretical possibility to use the money, it is the interest rate at the seller’s place of business that should be applied. However the buyer’s duty to account for benefits is based on actual and net benefits, while the buyer’s own use of goods also constitutes a benefit which has to be restituted. When the goods cannot be returned in a substantially unimpaired condition, the buyer has to restitute by means of a surrogate, which includes the commodum ex re and the commodum ex negotiatione.

신용장 매입은행의 법적지위

허해관 한국무역상무학회 2017 貿易商務硏究 Vol.76 No.-

This article provides the definitions of the negotiation of credit, the negotiating bank and the negotiation credit. It further describes a number of legal status of negotiating banks by looking into the legal relations firstly between the beneficiary and the negotiating bank and secondly between the issuing bank and the negotiating bank. This study is in large part based on relevant provisions of UCP 600 and decisions of the Supreme court of South Korea. Under UCP 600 the definition of negotiation requires the purchase by the nominated negotiating bank of the required documents by advancing funds on or before the banking day on which reimbursement is due to the negotiating bank. A negotiation credit authorizes the negotiating bank who is a nominated bank to purchase from the beneficiary the documents required by the letter of credit and to present those documents to the issuing bank for reimbursement. If the credit is to be honoured at sight, reimbursement is due when the issuing bank determines that there has been a conforming presentation. Reimbursement under a letter of credit available by acceptance or by deferred payment is due at maturity of the credit. In particular, while the timing of advance by the nominated negotiating bank is up to the parties, a promise of the negotiating bank to advance the purchase price to a fraudulent beneficiary does not confer immunity from letter-of-credit fraud prior to its performance. This requires the negotiating bank who is notified of material fraud prior to making an advance to beneficiary to avoid a loss by using the fraud.

국제무역에서 청구보증의 개시와 종료

허해관 한국무역보험학회 2013 무역금융보험연구 Vol.14 No.1

본고는 URDG 758을 기초로 청구보증의 개시와 종료의 문제를 논의한다. 먼저 청구보증의 유효기간이 언제 개시하는지의 문제를 고찰하고, 다음으로 청구보증이 언제 종료하는지에 관하여 만료일과 만료사건에 의한 종료를 살펴본 후, 보증상 연장조항이나 ‘연장 또는 지급의 선택부지급청구’, 불가항력에 의한 청구보증 유효기간의 연장의 문제를 아울러 고찰한다. 이어 끝으로 보증금액의 소진과 채무면제서의 교부에 의한 보증의 종료를 고찰하고서 글을 마무리한다.

ICC 모델국제매매계약서의 실무상 활용에 관한 일고찰 - 준거법과 정형거래조건의 선택을 중심으로 -

허해관 한국무역보험학회 2023 무역금융보험연구 Vol.24 No.6

실무상 우리나라 무역의 일선을 담당하는 수출입기업들이 국제물품매매계약을 충분히 이해하고 능숙하게 잘 체결하는 것은 중요한 일이지만 자금이 넉넉지 못한 중소기업들은 그럴 수있는 형편이 못되는 실정이므로, 본고는 무역실무자들이 실무상 활용할 수 있도록 ICC 모델국제(공산물)매매계약서(ICC Model Contract - International Sale (Manufactured Goods)를 살펴봄으로써 실무상 조금이나마 도움이 되고자 한다. 이에 본고는 모델매매계약서 중 준거법조항과정형거래조건 선택조항을 고찰한다. 본고는 먼저 ICC 모델국제매매계약서를 개괄하면서 이계약서의 목적과 특징, 구성, 적용범위를 간략히 살펴본다. 이어 본고는 이 모델계약서의 준거법조항을 검토하면서, CISG를 준거법으로 지정하면서 아울러 보충적 준거법으로 매도인국법을 지정하는 모델계약서 규정이 실무상 구체적으로 어떤 의미와 효력을 갖는지를 들여다본다. 나아가 본고는 모델계약서상 정형거래조건을 선택하는 문제를 검토하면서, 운송방식, 물품인도장소, 운송계약체결, 보험계약체결 등 정형거래조건을 선택할 때의 고려요소들을 살펴본다 In practice, it is important for exporters and importers to fully understand and skillfully conclude international contracts for sale of goods, though small-and medium-sized businesses with insufficient funds are not in good position to do so. Accordingly, this paper aims to provide them with some practical help by examining the ICC Model Contract - International Sale (Manufactured Goods). For this purpose, this paper looks into the model contract focusing on the applicable law clause and the choice-of-trade-term clause. Regarding the applicable law clause, this paper analyses contractual provision of the model contract and finds out the specific meanings and effects of the provisions that designate first CISG as the applicable law and secondly the law of the seller's country as the supplementary governing law. Furthermore, this paper examines the issues concerning the choice of proper trade term under the model contract and then provides factors to be considered by the parties to the contract when choosing their trade term properly, such as the mode of transport, the place of delivery and the contracts of carriage and insurance

국제전자정보거래(國際電子情報去來)에 관한 입법동향(立法動向)

허해관,Hur, Hai-Kwan 한국무역상무학회 2004 貿易商務硏究 Vol.23 No.-

This paper focuses on two recent legislative developments in electronic commerce: the "Uniform Computer Information Transactions Act" ("UCITA") of USA and the "preliminary draft convention on the use of data message in [international trade] [the context of international contracts]" ("preliminary draft Convention") of UNCITRAL. UCITA provides rules contracts for computer information transactions. UCITA supplies modified contract formation rules adapted to permit and to facilitate electronic contracting. UCITA also adjusts commonly recognized warranties as appropriate for computer information transactions; for example, to recognize the international context in connection with protection against infringement and misappropriation, and First Amendment considerations involved with informational content. Furthermore, UCITA adapts traditional rules as to what is acceptable performance to the context of computer information transactions, including providing rules for the protection of the parties concerning the electronic regulation of performance to clarify that the appropriate general rule is one of material breach with respect to cancellation (rather than so-called perfect tender). UCITA also supplies guidance in the case of certain specialized types of contracts, e.g., access contracts and for termination of contracts. While for the most part carrying over the familiar rules of Article 2 concerning breach when appropriate in the context of the tangible medium on which the information is fixed, but also adapting common law rules and rules from Article 2 on waiver, cure, assurance and anticipatory breach to the context of computer information transactions, UCITA provides a remedy structure somewhat modeled on that of Article 2 but adapted in significant respects to the different context of a computer information transaction. For example, UCITA contains very important limitations on the generally recognized common law right of self-help as applicable in the electronic context. The UNCITRAL's preliminary draft Convention applies to the use of data messages in connection with an existing or contemplated contract between parties whose places of business are in different States. Nothing in the Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate or false statements in that regard. Likewise, nothing in the Convention requires a contract or any other communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract to be made or evidenced in any particular form. Under the Convention, a communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract, including an offer and the acceptance of an offer, is conveyed by means of data messages. Also, the Convention provides for use of automated information systems for contract formation: a contract formed by the interaction of an automated information system and a person, or by the interaction of automated information systems, shall not be denied on the sole ground that no person reviewed each of the individual actions carried out by such systems or the resulting agreement. Further, the Convention provides that, unless otherwise agreed by the parties, a contract concluded by a person that accesses an automated information system of another party has no legal effect and is not enforceable if the person made an error in a data message and (a) the automated information system did not provide the person with an opportunity to prevent or correct the error; (b) the person notifies the other party of the error as soon as practicable when the person making the error learns of it and indicates that he or she made an error in the data message