The Liability System and the Legal Nature of the Seller's Liability for Defective Goods under Korean Law and the PELS

다국어 초록 (Multilingual Abstract)

This study attempts to provide a comparative overview of the liability
systems Korean law and the PELS adopt, that is, the approaches taken by
Korean law and the PELS to deal with various irregularities of contractual
performance. In addition, it examines in a comparative way the questions
of what is the position of the seller's liability for his delivery of defective
goods under the chosen liability system and what is the legal nature of the
seller's liability.
The study finds that the dual liability system taken by Korean law has
caused some complexities as to the matter of which liability is applicable in
some borderline cases. The problem in such complexities is originated in
that the remedies available and the limitation period applicable are
differentiated in accordance with one's different categorization among three
types of default under the general liability and defective performance under
the seller's guarantee liability. In this light, the study argues that the unified
liability system under the PELS is superior because its concept of
non-performance embraces in a unitary manner all the aspects of default
including defects in quality, quantity and title.
In addition, it finds that Korean law has suffered endless debates on the
question of what are the true contents of the same remedies of rescission
and damages provided under the seller's guarantee liability as under the
general liability. The debates have been come along on the basis of the
traditional presumption among some of civil law jurisdictions that two
liabilities be different in terms of not only their legal nature but also their
contents of remedies. The study argues that the problem may be
circumvented, first, by another way of thinking that the unified liability in
Korean law is inferred from the specification of the identical remedies for
both the general liability and the seller's guarantee liability under the KCC,
second, by the preposition that the requirement of fault be depended upon
what remedy the buyer seeks to claim rather than what liability he does to rely on.

목차 (Table of Contents)

• Ⅰ. Introduction
• Ⅱ. Korean Law
• Ⅲ. PELS
• Ⅳ. Evaluation
• Ⅴ. Concluding Remarks
• BIBLIOGRAPHY
• ABSTRACT

참고문헌 (Reference)

1 김대정, "채무불이행법과 하자담보책임법의 통합모색- 要件論을 중심으로 -" 한국민사법학회 (26) : 3-30, 2004

2 Hartkamp, A, "Towards a European Civil Code" The Hague: Kluwer Law International 2004

3 Choi, June-sun, "The Unidroit Principles of International Commercial Contracts and Korean Law"

4 Eo, Yeon-eoi, "The Nature of the Guarantee Liability for Defective Goods" 19 : 226-, 1989

5 Lee, Sang-kwang, "The Basic Matters in the Seller’s Guarantee liability" 283-, 1998

6 Treitel, G, "Remedies for Breach of Contract" Clarendon Press 1988

7 Kim, Dae-jeong, "Reconstruction of the Guarantee Liability for Defective Goods by the Contractual Liability Theory" (9) : 242-, 1993

8 Lee, Young-hwan, "Re-examination of the Theories as to the Nature of the Seller’s Guarantee Liability" 16 : 1989

9 Ahn, Choon-soo, "Problems under the Guarantee Liability Law" 419 : 1995

10 Horn, N, "Private and Commercial Law" Oxford Univ. Press 93-, 1982

11 Hondius, E, "Principles of European Law on Sales" Oxford University Press 2008

12 Lando, O, "Principles of European Contract Law" Kluwer Law International 2000

13 Kim, Joo-soo, "Particulars in Obligatory Law" Samyoungsa 1997

14 Lee, Eun-young, "Particulars in Obligatory Law" Pakyoungsa 2005

15 Kwak, Yun-jik, "Particulars in Obligatory Law" Pakyoungsa 2003

16 Kim, Hyung-bae, "Particulars in Obligatory Law" Pakyoungsa 1997

17 Kim, Jeung-han, "Particulars in Obligatory Law" Pakyoungsa 2006

18 Kim, Ki-sun, "Particulars in Korean Obligatory Law" Bobmunsa 1988

19 Kim, Hyung-bae, "Lectures on Civil Law" Pakyoungsa 2008

20 Cho, Kyu-chang, "Guarantee Liability for Defective Goods" 221-, 1983

21 Markesinis, B, "German Law of Obligations" Oxford Univ. Press 1997

22 Kwak, Yun-jik, "General Rules in Obligatory Law" Pakyoungsa 2006

23 Fauvarque-Cosson, B, "European Contract Law - Materials for a Common Frame of Reference" European Law Publishers 2008

24 Kim, Dong-hoon, "Ein Versuch zur Integration der Nichterfüllungs - und Sachmängelhaftung" 251-, 2003

25 Ahn, Bup-young, "Damages for Defective Goods" 194 : 1995

26 Zweigert, K, "An Introduction to Comparative Law" Oxford Univ. Press 1998

27 Jee, Won-lim, "A Study as to the Categories of Non-performance" (15) : 374-, 1997

28 Lee, Byung-mun, "A Comparative Study on the Seller's Liability for Non-conforming Goods under CISG, English law, European Law and Korean Law, Doctoral thesis" Univ. of Warwick 2001