국제매매계약위반에 대한 구제방법으로서의 대체거래에 기초한 손해배상

Abstract

When a contract has been avoided because of a breach, the aggrieved party may engage in a substitute transaction. The United Nations Convention on Contracts for the International Sale of Goods(CISG) article 75 provides that an aggrieved party may recover damages measured by the difference between the contract price and the price in a substitute transaction if the original contract has been avoided and if the substitute transaction was concluded in a reasonable manner and within a reasonable time after avoidance. Article 75provides for the “concrete” measurement of damages, eliminating the need for the aggrieved party to prove the market price for the goods. This concrete method for calculating damages is preferred to improve legal certainty of the parties and thus to promote international trade. CISG has entered into force in 78 countries including Korea’s major trading counterparts. Also CISG entered into force in Korea on March 1, 2005. It is not surprising that this paper has identified Korean court decisions measuring damages by the difference between the contract price and the price in a substitute transaction. This paper focuses on the prerequisites of the concrete measurement of the damages and legal consequences of failing to satisfy the prerequisites. Therefore, this paper could contribute to promoting Korean courts’ clear understanding of the prerequisites of the concrete measurement of the damages as well as to enhancing legal certainty of the parties concerned.