국제상사매매의 이행정지권에 관한 법적 쟁점 -국제물품매매계약에 관한 UN협약(CISG)을 중심으로-
Legal Issues on the Right of the Suspension of Performance in the International Commercial Transactions under the CISG
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Under the CISG Article 71 in the International Sale of Goods, a party may suspend the performance of his obligations if it becomes apparent that the other party will not perform a substantial part of his obligations, and the seller may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them if he has already dispatched the goods before the grounds become evident. These remedies differ in their purpose, their conditions and effects, in that the right of CISG Article 72 authorizes the innocent party to declare the contract avoided earlier than the time the other party's non-performance materializes when the performance is due if it is clear that the latter will commit a fundamental breach of contract. An objective test, however, should be used to judge the reasons which would give rise to a suspension of performance, i.e the reasons must become apparent to a reasonable person in the same circumstances, but no absolutely certainly is required. The right to stop to the goods in transit does not relate to the relationship between the buyer and his other partners if he has already resold the goods. There are no obligations for the carrier to accept the seller's request for stoppage. The party suspending performance must immediately give notice of the suspension to the other party. If he fails to do it, he may be claimed for damages by the other party. Anticipatory breach regulated under the CISG, which has its origin in the common law, may be supplemented by the principles of the common law, if there is any vagueness or uncertainty in the interpretation and application of the provisions of the CISG. This paper purposes to provide the resonable and define standard for the suspension prior to the date for performance through in depth review on the requirements and reasons under the relative article of the CISG.
Abstract
Under the CISG Article 71 in the International Sale of Goods, a party may suspend the performance of his obligations if it becomes apparent that the other party will not perform a substantial part of his obligations, and the seller may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them if he has already dispatched the goods before the grounds become evident. These remedies differ in their purpose, their conditions and effects, in that the right of CISG Article 72 authorizes the innocent party to declare the contract avoided earlier than the time the other party's non-performance materializes when the performance is due if it is clear that the latter will commit a fundamental breach of contract. An objective test, however, should be used to judge the reasons which would give rise to a suspension of performance, i.e the reasons must become apparent to a reasonable person in the same circumstances, but no absolutely certainly is required. The right to stop to the goods in transit does not relate to the relationship between the buyer and his other partners if he has already resold the goods. There are no obligations for the carrier to accept the seller's request for stoppage. The party suspending performance must immediately give notice of the suspension to the other party. If he fails to do it, he may be claimed for damages by the other party. Anticipatory breach regulated under the CISG, which has its origin in the common law, may be supplemented by the principles of the common law, if there is any vagueness or uncertainty in the interpretation and application of the provisions of the CISG. This paper purposes to provide the resonable and define standard for the suspension prior to the date for performance through in depth review on the requirements and reasons under the relative article of the CISG.
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