운송유지권에 관한 법적 검토 -국제물품매매계약에 관한 UN협약(CISG)을 중심으로-
Legal Issues on the Right of Stoppage in Transit under the CISG
0
조회
0
다운로드
2
인용
0
참고문헌
키워드
초록
The United Nations Convention on Contracts for the International Sale of Goods (CISG) provides the issues of preparatory remedy of innocent party facing anticipatory breaches of the other party, such as the right of suspension and the right of stoppage in transit if it becomes apparent that the other party will not perform a substantial part of his obligations under Article 71. When the buyer of goods becomes insolvent the unpaid seller who has parted with the possession of the goods has the right of stopping them in transit, that is to say, he may resume possession of the goods as long as they are in course of transit, and may return them until payment or tender of the price. These provisions enable the innocent party suspending that the other party will not fulfill his obligations in future in compliance with their international sale contract to suspend his own performance and demand additional guarantees, or even to avoid the contract. The standards of the suspension of performance are less strict than those of the avoidance of contract. An objective test, however, should be used to judge the reasons which would give rise to a suspension of performance,i.e the reasons must become apparent to a reasonable person in the same circumstances, but no absolutely certainly is required. The party suspending performance may prevent the handing over of the goods to the buyer if he has already dispatched the goods. The right of stop the goods in transit does not relate to the relationship between the buyer and his other partners if he has already resold the goods. There are no obligations for the carrier to accept the seller's request for stoppage. This paper suggests that the clear criterion regarding the right of stoppage in transit will play a critical role in the issues of who will make a contract with carrier; who will have the right of control of goods
Abstract
The United Nations Convention on Contracts for the International Sale of Goods (CISG) provides the issues of preparatory remedy of innocent party facing anticipatory breaches of the other party, such as the right of suspension and the right of stoppage in transit if it becomes apparent that the other party will not perform a substantial part of his obligations under Article 71. When the buyer of goods becomes insolvent the unpaid seller who has parted with the possession of the goods has the right of stopping them in transit, that is to say, he may resume possession of the goods as long as they are in course of transit, and may return them until payment or tender of the price. These provisions enable the innocent party suspending that the other party will not fulfill his obligations in future in compliance with their international sale contract to suspend his own performance and demand additional guarantees, or even to avoid the contract. The standards of the suspension of performance are less strict than those of the avoidance of contract. An objective test, however, should be used to judge the reasons which would give rise to a suspension of performance,i.e the reasons must become apparent to a reasonable person in the same circumstances, but no absolutely certainly is required. The party suspending performance may prevent the handing over of the goods to the buyer if he has already dispatched the goods. The right of stop the goods in transit does not relate to the relationship between the buyer and his other partners if he has already resold the goods. There are no obligations for the carrier to accept the seller's request for stoppage. This paper suggests that the clear criterion regarding the right of stoppage in transit will play a critical role in the issues of who will make a contract with carrier; who will have the right of control of goods
참고문헌 (35)
- 김정호, "국제거래법" (2002), 고려대출판부
- 김형배, "채권각론" (2001), 박영사
- Honnold, John O, "UN통일매매법(제2판)" (2004), 삼영사
- 이은영, "채권각론" (2005), 박영사
- 김정회, "Incoterms 1990과 비엔나협약의 위험이전시기", 국제상학, 12(2) (1997), 한국국제상학회
- UNCITRAL 운송법 조약에서 논의되고 있는 인도 및 인도지연으로 인한 책임, 국제규범의 현황과 전망 -2006년 국제규범연구반 연구보고-, "김필곤", 법원행정처, ~ (2006)
- 박세민, "현행 신중한 보험자(prudent insurer) 기준에 대한 批判的 再考-영국 보험법의 해석을 중심으로-", 보험학회지, (68), pp.1~38 (2004), 한국보험학회
- 석광현, "輸入貨物의 所有權 移轉에 관한 硏究", 통상법률, (51), pp.35~67 (2003), 법무부
- 안영태, "국제물품매매계약의 위반과 구제에 관한 연구", 박사, pp.2001
- 이천수, "국제물품매매계약에서 이행기 전의 계약위반에 관한 연구", 국제지역연구, 9(3), pp.808~824 (2005), 국제지역학회
- 최수정, "동산매매에 있어서의 위험부담에 관한 연구", 박사, pp.2000
- 최준선, "UN국제물품매매법상의 위험부담", 상사법연구, 12 (1993), 한국상사법학회
- 최흥섭, "국제물품매매계약에 관한 유엔협약과 우리법의 비교적 검토", 비교사법, 11(3), pp.1~60 (2004), 한국비교사법학회
- 하강헌, "국제물품매매계약에서의 이행정지에 관한 고찰", 무역학회지 (1998), 한국무역학회
- 허해관, "국제물품매매협약상 상대방의 계약위반이 예견됨에 따른 대응수단", 무역학회지, 34(2), pp.91~115 (2009), 한국무역학회
- 허해관, "해상송부매매에서 국제매매협약상 매도인의 서류적합의무에 관한 일고찰 -선하증권을 중심으로-", 무역상무연구, 37, pp.61~85 (2008), 한국무역상무학회
- 新堀聰, "國際統一賣買法" (1994), 同文館
- 山手正史, "國際賣買契約における危險負擔に關する一考察 : ウィーン統一賣買法を中心として-", 東北學院大學論集, (31) (1988)
- Atiyah, P.S, "The Sale of Goods, 7th ed." (1985), Pitman
- Bianca, C.M, "Commentary on the International Sales Law : the 1980 Vienna Sales Convention" (1987), Giuffre
- D'Arcy, Leo, "Schmittoff's Export Trade - The Law & Practice of International Trade, 10th ed." (2000), Sweet & Maxwell
- David G. Epstein, "Basic Uniform C ommerc ial Code, 2nd ed." (1983)
- Enderlein, Fritz, "International Sales Law: United Nations Convention on Contracts for the International Sale of Goods" (1992), Oceana Publications
- Flechtner, Harry M, "Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C", Journal of Law and Commerce, 8, pp.53~ (1988)
- Honnold, John O, "Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed." (1998), Kluwer Law International
- Kritzer, Albert H, "Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods" (1994), Kluwer Law and Taxation Publishers
- Prüssman, Heinz, "Kurz Komm. Seehandelsrecht" (1983), C. H. Beck
- Ramberg, Jan, "Guide to Incoterms 2000" (1999), ICC Publishing SA
- Schlechtriem, Peter, "Uniform Sales Law - The UN Convention on Contracts for the International Sale of Goods" (1986), Manzsche
- Treitel G.H., "Remedies for Breach of Contract: A Comparative Account" (1988), Clarendon Press
- Vilus, Jelena, "Provisions Common to the Obligations of the Seller and the Buyer. in: International Sale of Goods : Dubrovnik Lectures" (1986), Oceana
- Ziegler, Alexander von, "Transfer of Ownership in International Trade" (1999), Kluwer Law International
- Goodfriend, Douglas E., "After the Damage is Done : Risk of Loss Under the United Nations Convention on Contracts for the International Sale of Goods", Colum. J. Transnat'l. L., 22, pp.577~ (1984)
- Roth, P. M., "The Passing of Risk", Am. J. Com. L., 27(2) (1979)
- Ziegler, Alexander von, "The Right of Suspension and Stoppage in Transit (and Notification Thereof)", Journal of Law and Commerce, 25(1) (2006)