비엔나 협약상 해석원칙과 적용사례에 관한 연구 - 미국 조지아 주 연방지방법원 2009. 12. 17. 판결을 중심으로 -

Abstract

CISG Article 7 summarise as follows: (1) Regard for the convention's international character requires sensitive response to the purposes of the Convention in the light of its legislative history rather than the preconceptions of domestic law. (2) Response to "the need to promote uniformity in application", which calls for consideration of interpretations developed in other countries through adjudication and scholarly writing. (3) Regard for "the observance of good faith in international trade", a principle that in conjunction with point(1), supra and point(4), infra, can resist stultification and circumvention of the Convention's rules. (4) Questions not expressly settled by the Convention should be answered, when possible, "in conformity with the general principles on which it is based", an approach that reinforces regard for both the Convention's "international character" and "the need to promote uniformity in application" by minimizing recourse to divergent rules of domestic law. And examining Article 7(2), we come to the conclusion that the Convention permits three methods which should be applied subsidiary ; ⓐ application of its specific provisions by analogy ⓑ application of general principles on which the Convention is based, ⓒ application of law determined by the rules of private international law. There are two reasons why a matter not be covered by the Convention. First and most obviously, it has been specifically exclude from the sphere of Application by the CISG itself. Second, change in business methods will lead to gaps. Anyway, to lead to a more unified approach to CISG, its members states shoud take into account foreign case laws to solve their disputed matters by using the CISG case law on UNCITRAL Texts(CLOUT), CISG Digest or other sources. They can be said to provide the member states with useful guidance, consistent with the practice followed in contemporary international legal instruments.