국제물품매매협약(CISG)의 본질적인 계약위반 관련 국내 법원 판례 평석 - 2010년 이후의 주요 판결들을 중심으로

Abstract

UN Convention on International Sale of Goods (“CISG”), unlike Korean domestic civil codes, has an unique concept of ‘fundamental breach of contract’ under Article 25. The definition of ‘fundamental breach of contract’ contained therein constitutes a precondition for a number of remedies defined elsewhere in the CISG although Article 25 does not in itself grant a remedy to the parties. Thus, the notion of the fundamental breach of contract has been characterized as the ‘linchpin’ of the CISG’s system of remedies. It is a result of reflection of the common law feature into CISG. Article 25 provides three elements that the obligee has to prove in order to seek for remedies such as avoidance of contract or replacement of substitute goods in case of the obligor’s fundamental breach of contract, the three elements of which are breach of contract by the obligor, substantial detriment occurring to the obligee, and foreseeability from the obligor’s standpoint. This article provides a brief overview of the three elements and critics of a couple of primary judgments that Korean courts have rendered since 2010, having in regard to the notion of fundamental breach of contract in issue. Although Korean courts confirmed that there were fundamental breach of contract by the obligor so that the obligee was entitled to be awarded the remedies sought, it is found that the courts lacked detail analyses of each of the elements so as for them to jump into a conclusion that there was the fundamental breach of contract by the obligor. Even thought the author has no objection to the conclusion itself in the judgments considering all of the circumstances thereof, he opines that the courts have to render more detail reasoning of why the obligor has committed the fundamental breach of contract that will easily enable the losing party to accept the conclusion of the judgment.