계약 해제에 따른 원상회복관계－CISG와 민법의 비교－

Abstract

Comparing CISG and Korean Civil Code, which have equivalent normative power domestically, enriches the theory of both norms. The subject of comparison in this article is the restitution due to contract avoidance. In Korean Civil Code, subjects where previous studies were insufficient or unclear can be supplemented with the doctrine of CISG, another domestic norm. Meanwhile, Understanding of CISG can be improved by comparison with familiar doctrine of Korean Civil Code. Furthermore, since the restitution in CISG is assessed to have significant shortcomings, comparative study with Korean Civil Code may be meaningful in supplementing such deficiencies. The summary is as follows: ① Regarding the theory of avoidance effect, in Korean Civil Code, the property right effect theory is the prevailing theory and precedent, but in CISG, the ex-nunc-effect theory, which is same as the unwinding relationship theory, is the majority. It is valid in terms of the superiority of contract law over unjust enrichment and the ground for applying contract-related provisions to restitution. ② With regard to the place of making restitution, in CISG, it is reasonable to consider the place where the goods are located at the time of avoidance as the restitution place for both the goods and the money, based on Article 31(b) and 57(1)(b). In Korean Civil Code, Article 586 and 467 can be applied (by analogy) and according to these articles, the location of the goods when the contract is avoided will often be the place of making restitution of the goods and the money, likewise CISG. ③ In connection with the currency of money restitution, in CISG, if there is the agreement, it shall be followed. But in cases where there is no agreement, opinions are divided. In Korean Civil Code, the provisions of foreign currency claim should be applied. If the payment was made in a foreign currency, the principle is that the restitution should also be made in that currency. However the seller can also repay in Korean won. ④ CISG and Korean Civil Code have in common the provision of avoidance exclusion in case that the return of the goods is impossible. However, in respect of burden of proof, the burden of the buyer to prove the grounds for exception under CISG appears to be greater than that under Korea Civil Code. ⑤ Regarding the compensation of benefits from the goods, it is not necessary to restrict to monetary compensation in CISG. Meanwhile, in both CISG and Korean Civil Code, the compensation of forgone(hypothetical) benefits is the issue. If it can be reasonably expected in the normal course of business, it should be included in the scope of compensation. ⑥ Compensation of benefits when the return of the goods is impossible is the matter of surrogat and monetary compensation. If CISG Article 84(2)(b) can be construed as regarding the surrogat doctrine, it will be the strong ground for surrogat claim under Korean Civil Code. Recognizing the doctrine of monetary compensation in CISG must be careful.