국제물품매매계약에 관한 국제연합 협약(CISG)상 계약위반 개념의 효용성과 시사점 －민법상 채무불이행책임과의 비교를 중심으로－

Abstract

The Civil Code distinguishes between the seller’s liability for warranty and non-performance of obligation. The Convention, on the other hand, does not distinguish between the seller’s liability for warranty and non-performance of obligation, but treats both as a matter of breach of contract centered on default and establishes a unified liability system. It is difficult to see that the difference in the organization of the system for breach of contract or default makes a fundamental difference in the resolution of individual cases. Even if we consider the conclusion of actual disputes in Korea, the difference between the two is not significant. However, the respective attitudes of the Convention and the Civil Code do differ in the way they recognize and argue the situation of nonperformance of contractual obligations, and depending on the point of view. As our society becomes increasingly informational and globalized, the boundaries between international and domestic transactions are blurring, and international standardization of the form and content of contracts is constantly being attempted. Many countries around the world are trying to modernize their contract law in the name of reforming the field of law of obligations, and the discussion of conventions, which have been successfully normed by international agreement, is at the center of the discussion. In Korea, there has been an active debate on the relationship between the Convention and the civil code system of breach of contract or default. The Convention is not merely a reference norm in Korea, but a valid statute that has been accepted into domestic law and is actually applied to international contracts for the sale of goods. Since the Convention entered into force in March 2005, courts have been directly applying the Convention to disputes concerning international contracts for the sale of goods to determine the legal relationship between the parties, and over the past 17 years, a considerable amount of case law has been accumulated on individualcases and research has been actively conducted. The Convention can be used as an important empirical source for modernizing our law of obligations, not only for the content of the norms, but also for the actual interpretation theory and judgment based on the content. Thus, the study of “breach of contract” as defined by the Convention can play a meaningful role in the legislative debate on default law and, in practice, in identifying the thought processes that lead to the recognition of a contractual default, and in providing a framework for a more economical perception of it.