국제상사계약상 신의성실의 원칙

Abstract

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.