국제물품매매계약에 있어 해제규정의 법적 구조와 실무적 적용
The Legal Structure and Practical Application of Avoidance of a Contract under the International Sales of Goods
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This paper is intended to discuss the issue of the avoidance of a contract under the international sales of goods. Especially the paper focuses on the articles or the legal system of international commercial transaction regimes such as CISG, PICC and PECL. Avoidance of a contract, generally, triggers an obligation by both parties to make restitution of whatever the other side has supplied or paid under the contract. Under the CISG, the effects of avoidance are described in Arts. 81 to 84, four articles of unequal importance dealing with the consequences which result from a declaration of avoidance accomplished by a party in accordance with the conditions set forth in CISG Arts. 49, 51,64, 72 and 73. Under the PICC, PICC Art. 7.3.6(1) provides in the first sentence that: “On termination of the contract either party may claim restitution of whatever it has supplied,provided that such party concurrently makes restitution of whatever it has received.” Thus,compared with the CISG, both sets of rules provide for restitution of what has been performed under the contract. The PECL, Art. 9:305 states the general rule that termination of a contract has no retroactive effect. It does not follow from the fact that the contract has been terminated that the party which has performed can get restitution of what it has supplied. However, even though termination is forward looking in the way just explained,there are situations in which it is appropriate to undo what has taken place before termination. Thus the aggrieved party may need the right to reject a performance already received if termination shows that it is of no value to the party; either party may need to recover money already paid to the other party if nothing has been received in return; and either may need to be able to recover other property which has been transferred. Korean law in regard to the avoidance of a contract differs from CISG, PICC, and PECL. It is time when we should amend our legal system with great interest in order to harmonize it with the international standpoint. It will be the turning point of our juridical regime.
Abstract
This paper is intended to discuss the issue of the avoidance of a contract under the international sales of goods. Especially the paper focuses on the articles or the legal system of international commercial transaction regimes such as CISG, PICC and PECL. Avoidance of a contract, generally, triggers an obligation by both parties to make restitution of whatever the other side has supplied or paid under the contract. Under the CISG, the effects of avoidance are described in Arts. 81 to 84, four articles of unequal importance dealing with the consequences which result from a declaration of avoidance accomplished by a party in accordance with the conditions set forth in CISG Arts. 49, 51,64, 72 and 73. Under the PICC, PICC Art. 7.3.6(1) provides in the first sentence that: “On termination of the contract either party may claim restitution of whatever it has supplied,provided that such party concurrently makes restitution of whatever it has received.” Thus,compared with the CISG, both sets of rules provide for restitution of what has been performed under the contract. The PECL, Art. 9:305 states the general rule that termination of a contract has no retroactive effect. It does not follow from the fact that the contract has been terminated that the party which has performed can get restitution of what it has supplied. However, even though termination is forward looking in the way just explained,there are situations in which it is appropriate to undo what has taken place before termination. Thus the aggrieved party may need the right to reject a performance already received if termination shows that it is of no value to the party; either party may need to recover money already paid to the other party if nothing has been received in return; and either may need to be able to recover other property which has been transferred. Korean law in regard to the avoidance of a contract differs from CISG, PICC, and PECL. It is time when we should amend our legal system with great interest in order to harmonize it with the international standpoint. It will be the turning point of our juridical regime.
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