국제물품매매계약에 관한 UN협약의 적용상 몇 가지 논점에 관한 小考

Abstract

The District Court for the Eastern Seoul rendered a judgment in a case involving a supply contract between a Korean corporation and a Chinese one in 2007, applying the United Nations Convention on Contracts for the International Sale of Goods('CISG'), possibly the first occasion in which a Korean court did so since Korea had joined the CISG regime in 2005. In the case, the Chinese corporation brought a suit for damages against the Korean corporation, arguing that the latter failed to pay the price for the goods it had delivered. The defendant corporation objected that it had duly cancelled the contract because of the plaintiff's refusal to deliver a certain portion of the goods in a timely manner. This article, while appreciating the judgment's significance as the first one applying the CISG in Korea, points out that it made several errors in applying it. First, the court failed to provide any detailed analysis as to the basis for its application of the CISG. Second, it applied wrong provisions to the defendant's alleged avoidance of the contract. It should have applied either the CISG article 51 or 73, instead of the CISG article 49. Third, the court should have explored the possibility of permitting the defendant to exercise the price reduction remedy under the CISG article 50 before it attempted to set off the defendant's damages with the plaintiff's. Last, it should have applied the set-off rule under the Chinese law, not under the Korean law, as the Korea's private international law instructs. This article concludes with the observation that despite its defects in analysis, the District Court for the Eastern Seoul's judgment remains important as the first case applying the CISG in Korea, and with the hope that it will exercise a positive effect on the development of the CISG law in Korea.