CISG의 흠결보충
Gap-Filling of the CISG
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The objective of this paper is to answer the question about relationship between gap-filling by the application of the general principles and gap-filling by analogical application in CISG. Chapter II attempts to illustrate the legislative history of Article 7(2) CISG. Chapter III considers gap-filling in accordance with Article 7(2) CISG, and puts forward for consideration an argument to solve the question of supra. Every legal system, be it based on legislation or on precedent, is continually called upon to cope with problems of gap-filling. The CISG has also recognized that there are gaps within the CISG which need filling. According to Article 7(2) CISG, a question that is governed by the CISG but does not find an express solution in it shall be settled in conformity with the general principles on which the CISG is based, or, in the absence of such principles, in conformity with the law applicable by virtue of the rules pertaining to private international law. Article 7(2) CISG serves the same function as gap-filling in Article 17 ULIS, but there is a difference between the rules in the sense of admissibility in the application of rules pertaining to domestic law. If the matter is governed by the CISG, and it is expressly settled under it, a gap cannot exist as the CISG already deals with the matter. Having concluded that a gap exists it is necessary to determine how it should be filled. There are two alternatives. Either the gap is filled by applying the general principles on which the CISG is based, or, in the absence of the applicable principles, the recourse is determined through domestic law. In considering these alternatives, considerations must be given to the international character of the CISG and the need to promote uniformity in its application (Article 7(1) CISG). The international character is directed at preventing the problem of homeward trends. Any gaps must be filled as much as possible within the CISG itself. The approach to gap-filling adopted in Article 7(2) CISG is influenced by similar methods to gap-filling that can be found in the codes of civil law systems. According to Article 7(1) CISG the meaning given to a term used in the CISG is not necessarily the same as the meaning accorded to it in a specific legal system which uses the same term. It must be assumed that the term is to be interpreted independently, taking into account its function within the context of the CISG. In spite of the similarity of wording ‘general principles’ concerning gap-filling rules, the function of Article 7(2) is to draw a line against the application of domestic law. There is general agreement that analogical application is one of the important methods of filling gaps. Although Article 7(2) CISG does not mention the analogy to specific provisions of the CISG as a means of filling gaps, this does not mean that reasoning behind the analogy is excluded from the CISG. The question that usually arises is about the relationship between the gap-filling by the application of the general principles and gap-filling by analogical application in CISG. There is diversity in academic opinions on it. They can be classified into three main groups. First, some of the scholars are of the opinion that there are two independent complementary methods of gap-filling, application of the general principles and analogical application, which are allowed under Article 7(2) CISG in a broad sense. And only when analogous solutions can not be found in the provisions of CISG should the interpreter resort to the application of the general principles on which the CISG is based. Such opinions neglect the distinction between analogy to one provision (Einzelanalogie) and analogy to more than one provision (Gesamtanalogie). Therefore in the case of analogy, a general principle is derived from one or several specific provisions; there is no clear-cut dividing line between the analogical application of one or more specific rules on the one hand and recourse to the general principles on the other. Secondly, some equate the method of gap-filling by analogy to more than one provision of CISG (Gesamtanalogie) with the recourse to general principles. However, such analogy as the only possible means of gap-filling seems to be insufficient and too narrow. They also ignore the value of the general principles which are basic to the CISG that carry the impression or notion of further development. Finally, some academics point out that the recourse to general principles on which the CISG is based includes analogy to specific provisions. Principled reasoning presupposes analogical thinking. Where there are no special reasons for limiting the analogical application of a specific provision to another case, the case is then regulated by a provision that is applied to a case at hand which is not encompassed by the wording but by the ratio legis and/or by the general principle (tertium comparationis). Reasoning by analogy consists of induction and deduction. To formulate a principle can be characterized as a form of inductive reasoning, i.e. analogy is regarded as a method to induce the general principle. The General principle is derived not only from several provisions but also from single provision (generalization). The general principles can be characterized as either general or specific and from the general principle we derive rule through deduction in order to be applied directly in a concrete case (specification). It should be concluded, from what has been said above, that analogy is included in the recourse to general principles on which the CISG is based.
Abstract
The objective of this paper is to answer the question about relationship between gap-filling by the application of the general principles and gap-filling by analogical application in CISG. Chapter II attempts to illustrate the legislative history of Article 7(2) CISG. Chapter III considers gap-filling in accordance with Article 7(2) CISG, and puts forward for consideration an argument to solve the question of supra. Every legal system, be it based on legislation or on precedent, is continually called upon to cope with problems of gap-filling. The CISG has also recognized that there are gaps within the CISG which need filling. According to Article 7(2) CISG, a question that is governed by the CISG but does not find an express solution in it shall be settled in conformity with the general principles on which the CISG is based, or, in the absence of such principles, in conformity with the law applicable by virtue of the rules pertaining to private international law. Article 7(2) CISG serves the same function as gap-filling in Article 17 ULIS, but there is a difference between the rules in the sense of admissibility in the application of rules pertaining to domestic law. If the matter is governed by the CISG, and it is expressly settled under it, a gap cannot exist as the CISG already deals with the matter. Having concluded that a gap exists it is necessary to determine how it should be filled. There are two alternatives. Either the gap is filled by applying the general principles on which the CISG is based, or, in the absence of the applicable principles, the recourse is determined through domestic law. In considering these alternatives, considerations must be given to the international character of the CISG and the need to promote uniformity in its application (Article 7(1) CISG). The international character is directed at preventing the problem of homeward trends. Any gaps must be filled as much as possible within the CISG itself. The approach to gap-filling adopted in Article 7(2) CISG is influenced by similar methods to gap-filling that can be found in the codes of civil law systems. According to Article 7(1) CISG the meaning given to a term used in the CISG is not necessarily the same as the meaning accorded to it in a specific legal system which uses the same term. It must be assumed that the term is to be interpreted independently, taking into account its function within the context of the CISG. In spite of the similarity of wording ‘general principles’ concerning gap-filling rules, the function of Article 7(2) is to draw a line against the application of domestic law. There is general agreement that analogical application is one of the important methods of filling gaps. Although Article 7(2) CISG does not mention the analogy to specific provisions of the CISG as a means of filling gaps, this does not mean that reasoning behind the analogy is excluded from the CISG. The question that usually arises is about the relationship between the gap-filling by the application of the general principles and gap-filling by analogical application in CISG. There is diversity in academic opinions on it. They can be classified into three main groups. First, some of the scholars are of the opinion that there are two independent complementary methods of gap-filling, application of the general principles and analogical application, which are allowed under Article 7(2) CISG in a broad sense. And only when analogous solutions can not be found in the provisions of CISG should the interpreter resort to the application of the general principles on which the CISG is based. Such opinions neglect the distinction between analogy to one provision (Einzelanalogie) and analogy to more than one provision (Gesamtanalogie). Therefore in the case of analogy, a general principle is derived from one or several specific provisions; there is no clear-cut dividing line between the analogical application of one or more specific rules on the one hand and recourse to the general principles on the other. Secondly, some equate the method of gap-filling by analogy to more than one provision of CISG (Gesamtanalogie) with the recourse to general principles. However, such analogy as the only possible means of gap-filling seems to be insufficient and too narrow. They also ignore the value of the general principles which are basic to the CISG that carry the impression or notion of further development. Finally, some academics point out that the recourse to general principles on which the CISG is based includes analogy to specific provisions. Principled reasoning presupposes analogical thinking. Where there are no special reasons for limiting the analogical application of a specific provision to another case, the case is then regulated by a provision that is applied to a case at hand which is not encompassed by the wording but by the ratio legis and/or by the general principle (tertium comparationis). Reasoning by analogy consists of induction and deduction. To formulate a principle can be characterized as a form of inductive reasoning, i.e. analogy is regarded as a method to induce the general principle. The General principle is derived not only from several provisions but also from single provision (generalization). The general principles can be characterized as either general or specific and from the general principle we derive rule through deduction in order to be applied directly in a concrete case (specification). It should be concluded, from what has been said above, that analogy is included in the recourse to general principles on which the CISG is based.
참고문헌 (64)
- 박영복, "매매협약(CISG) 적용 사안에 있어서의 상계", 국제거래법연구, 19(1), pp.121~143 (2010), 국제거래법학회
- 이재현, "국제물품매매계약에 관한 UN협약의 해석" (2008), 외법논집 제32집
- Alexy, Robert, "A theory of constitutional rights" (2004), Oxford
- Alexy, Robert, "The argument from injustice" (2002), Oxford
- Andersen, Camilla Baasch, "General Principles of the CISG - Generally Impenetrable? In Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday" (2008), Wildy, Simmonds & Hill Publishing
- Baldus, Christian, "Auslegung und Analogie im 19. Jahrhundert" (2006), Europäische Methodenlehre
- Bonell, Michael Joachim, "Commentary on the International Sales Law" (1987), Vienna Sales Convention, Giuffrè
- Bonell, Michael Joachim, "An International Restatement of Contract Law" (2005), The UNIDROIT Principles of International Commercial Contracts, 3. Edition, Ardsley
- "Admissibility of Analogy in Gap-filling under the CISG"[URL]
- Bridge, Michael G, "International Sale of Goods, Law and Practice, 2nd ed" (2007), Oxford
- Bydlinski, Franz, "Juristische Methodenlehre und Rechtsbegriff" (1982), Springer
- Canaris, Claus-Wilhelm, "Die Feststellung von Lücken im Gesetz" (1964), Duncker & Humblot
- Chandrasenan, Anukarshan, "UNIDROIT Principles to Interpret and Supplement the CISG: An Analysis of the Gap-Filling Role of the UNIDROIT Principles", Vindobona Journal of International Commercial Law and Arbitration, 11 (2007)
- Coing, Helmut, "Juristische Methodenlehre" (1972), Walter de Gruyter
- DiMatteo, "Internal Sales Law, A critical analysis of CISG jurisprudence" (2005), Cambridge
- Dölle, "Kommentar zum Einheitlichen Kaufrecht" (1976), Beck
- Drobnig, Ulrich, "General Principles of European Contract Law" (1986), International Sale of Goods: Dubrovnik Lectures, Oceana
- Dworkin, Ronald, "Taking Rights Seriously" (1977), Cambridge
- Engisch, Karl, "Einführung in das juristische Denken" (1983), 8. Aufl., Kohlhammer
- Enderlein, "International Sales Law: United Nations Convention on Contracts for the International Sale of Goods;" (1992), Convention on the Limitation Period in the International Sale of Goods, Oceana
- Felemegas, John, "An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods" (2007), Cambridge
- Ferrari, Franco, "Kommentar zum Einheitlichen UN-Kaufrecht -CISG" (2004), 4. Aufl., Beck
- Ferrari, Franco, "Interpretation of the Convention and Gap-filling: Article 7 In The Draft UNCITRAL Digest and Beyond" (2004), Sweet & Maxwell
- Ferrari, Franco, "Das Verhältnis zwischen den Unidroit-Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen, Zugleich ein Beitrag zur Lückenfüllung durch staatliche Gerichte" (1998), JZ
- Ferrari, Franco, "Gap-filling and Interpretation of the CISG: Overview of International Case Law", Vindobona Journal of International Commercial Law and Arbitration, 7 (2003)
- Fikentscher, Wolfgang, "Methoden des Rechts" (1976), Band III, J. C. B. Mohr
- Gebauer, Martin, "Uniform Law, General Principles and Autonomous Interpretation" (2000), Uniform Law Review
- Gruber, Urs Peter, "Methoden des internationalen Einheitsrechts" (2004), Mohr Siebeck
- Hellner, Jan, "Gap-filling by Analogy: Art. 7 of the U. N. Sales Convention in its Historical Context" (1990), Studies in International Law: Festskrift till Lars Hjerner, Norstedts
- Herber, Rolf, "Commentary on the UN Convention on the International Sale of Goods" (1998), Translated by G. Thomas, Oxford
- "Cross-reference and Editorial Analysis of CISG Article 7, CISG W3_Database"[URL]
- Honnold, John O, "Uniform Law for International Sales Under the 1980 United Nations Convention, 3rd. ed" (1999), Kluwer
- Honnold, John O, "Uniform Words and Uniform Application. The 1980 Sales Convention and International Juridical Practice" (1987), Einheitliches Kaufrecht und nationales Obligationenrecht, Nomos
- Huber, Peter, "Some introductory remarks on the CISG" (2006), Internationales Handelsrecht
- Karollus, Martin, "UN-Kaufrecht" (1991), Springer
- Kaufmann, Arthur, "Rechtsphilosophie" (1997), 2. Aufl., Beck
- Koneru, Phanesh, "The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles", Minnesota Journal of Global Trade (1997)
- Kramer, Ernst A, "Juristische Methodenlehre", pp.2~ (2005), Aufl., Stämpfli
- Kritzer, Albert H, "Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods" (1988), Kluwer
- Kropholler, Jan, "Internationales Einheitsrecht" (1975), Allgemeine Lehren, Mohr
- Lando, Ole, "CISG and Its Followers: A Proposal to Adopt Some International Principles of Contract Law", American Journal of Comparative Law, 35 (2006)
- Larenz, Karl, "Methodenlehre der Rechtswissenschaft", pp.6~ (1991), Aufl., Springer
- Larenz, "Methodenlehre der Rechtswissenschaft", pp.1995, Canaris
- Linhart, Karin, "Internationales Einheitsrecht und einheitliche Auslegung" (2005), Mor Siebeck
- MacCormick, Neil, "Rhetoric and the Rule of Law" (2005), Oxford
- Magnus, Ulrich, "Julius von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Wiener UN-Kaufrecht (CISG)", pp.2005, Sellier
- Magnus, Ulrich, "Die allegemeinen Grundsätze im UN-Kaufrecht (General Principles under the UN Sales Convention: English translation)" (1997), 3 International Trade and Business Law Annual
- Mertens, "Internationales Kaufrecht: Kommentar zu den Einheitlichen Kaufgesetzen", pp.1975, Rehbinder
- Metzger, Axel, "Allgemeine Rechtsgrundsätze" (2009), Band I, Mohr Siebeck
- Metzger, Axel, "Extra legem, intra ius: Allgemeine Rechtsgrundsätze im Europäischen Privatrecht" (2009), Mohr Siebeck
- Mosler, Hermann, "Staats- lexikon 3. Bd" (1987), 7. Aufl., Herder
- Povrzenic, Nives, "Interpretation and Gap-filling under the United Nations Convention on Contracts for the International Sale of Goods"
- Riesenhuber, Karl, "System und Prinzipien des Europäischen Vertragsrechts" (2003), De Gruyter
- Rosenberg, Mark N, "The Vienna Convention: Uniformity in Interpretation for Gap-Filling - An Analysis and Application", 20 Aust. Bus. L. Rev (1992)
- Saenger, Ingo, "Kommentar zum Bürgerlichen Gestzbuch, Band 3" (2003), 1297-2385 EGBGB CISG, Beck
- Schilf, Sven, "Allgemeine Vertragsgrundregeln als Vertragsstatut" (2005), Mohr Siebeck
- Schlechtriem, Peter, "Internationales UN-Kaufrecht. Ein Studien-und Erläuterungsbuch zum Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf" (2003), 2. Aufl., Mohr
- "Interpretation, gap filling and further development of the UN Sales Convention (Translation by Koehler)"[URL]
- Soergel, "Bürgerliches Gesetzbuch mit Einführungsgesetz und Nebengesetzen, begr. v. Soergel, neu hrsg. v. Siebert, Bd. 13", pp.Schuldrechtliche Nebengesetze 2 (CISG), 13. Aufl., Kohlhammer, Lüderitz
- Torre, Massimo La, "Nine critiques to Alexy’s theory of fundamental rights" (2006), Arguing fundamental rights, Springer
- Westermann, Harm Peter, "Münchener Kommentar zum Bürgerlichen Gesetzbuch, Band 3" (2004), Schuldrecht Besonderer Teil I, Beck
- Witz, Wolfgang, "International Einheitliches Kaufrecht" (2000), Recht und Wirtschaft
- Zeller, Bruno, "Four Corners - The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods" (2003)
- Zweigert, "An Introduction to Comparative Law (Translated by T. Weir), 2nd ed", pp.1992, Kötz