국제물품매매계약에 관한 유엔협약(CISG)과 매도인의 담보책임

Abstract

South Korea signed as a member on the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as ‘UNCISG’) on February 17,2004, and the UNCISG came into effect from March 1, 2005. Therefore, South Korea became a contracting party that shall not exclude any application of UNCISG under its contractual agreement, so that UNCISG, apart from Civil Law and Commercial Law,became applied as a governing law to any contract for international sale of goods where a business office is opened in overseas country. As a result, the contract for international sale of goods has faced a challenge of consistently interpreting and applying different legal systems specified in Korean Civil Law, Korean Commercial Law and UNCISG. In general, any liabilities conceivable in case of a defect found from goods delivered after dealing can fall broadly into two categories, that is, liability for default and liability for warranty against defects. Traditional discussions about possible associations and functions of these two kinds of liability have been addressed as one of critical topics in the studies of Civil Law. However, the said UNCISG on which South Korea signed on February 27, 2004 contains no provision on any liability for warranty against defects. That is why there may be a controversy about how to resolve these problems appearing in contracts for the international sale of goods. Particularly, it will be necessary to present a favorable way to resolve any problem shown in international trades, since UNCISG shall be applied in advance of Korean Civil Law and Commercial Law to any case of defect found in goods delivered under contracts for the international sale of goods. In order to give any relief for damages due to such defect, the Korean Civil Law divides the relief broadly into 2 categories, i.e. relief based on liability for default and relief based on liability for warranty against defects respectively. But UNCISG uses an common concept called ‘breach of contract’ to make such a uniform provision that a seller who fails to implement his or her contractual obligation shall assume any resulting liability for buyer's damages. In particular, in view of more or less differences between Korean statutory provisions and UNCISG in liability and relief when either of both parties violates any contract for the international sale of goods, there may be any unexpected risk resulting from inconsistency of legal system. Hence, it is necessary to review and examine major considerations of Korean relevant statutory provisions in comparison with relevant UNCISG provisions before developing a preventive safeguard measure.