유럽공통매매법안에서의 매도인의 추완권에 관한 연구
A Study on the Seller's Right to Cure in the Common European Sales Law
0
조회
0
다운로드
2
인용
0
참고문헌
키워드
초록
I have studied on the seller's right to cure in the Common European Sales Law. It’s implications can be summarized as follows. If the seller can offer the cure easily, it is rational to give the right to cure to the seller. I think that the contents of regulations on ‘the seller's right to cure within the time allowed for performance’ in CESL is natural in contents, so that the introduction of that regulations is not needed. CESL requires the notification of the lack of conformity from buyer to seller without undue delay. However, if the buyer is a consumer, the requirement of examination and notification is not applied to this rule. In case that the Korean Civil Law introduce the seller's right to cure, we should not ask the buyer’s notification as a requisite for the seller's right to cure. On the other hand, if the requirements for the seller's right to cure are met, the seller should offer to cure it at his own expense, and should notify the method of cure and also the period of cure without undue delay. We need to introduce the clause : “In case that the offer to cure burdens the buyer with significant inconvenience or the cure would be inappropriate in the circumstances, such a situation entitles the buyer to refuse the offer to cure”, “Notwithstanding cure, the buyer retains the right to claim damages for delay as well as for any harm caused or not prevented by the cure.”, and the clause : “The seller has a reasonable period of time to effect cure.” And both the introduction of the clause : “The buyer may withhold performance pending cure, but the rights of the buyer which are inconsistent with allowing the seller a period of time to effect cure are suspended until that period has expired.”, and the introduction of the clause : “The right to cure is not precluded by notice of termination.”, are also appropriate to the Korean civil law.
Abstract
I have studied on the seller's right to cure in the Common European Sales Law. It’s implications can be summarized as follows. If the seller can offer the cure easily, it is rational to give the right to cure to the seller. I think that the contents of regulations on ‘the seller's right to cure within the time allowed for performance’ in CESL is natural in contents, so that the introduction of that regulations is not needed. CESL requires the notification of the lack of conformity from buyer to seller without undue delay. However, if the buyer is a consumer, the requirement of examination and notification is not applied to this rule. In case that the Korean Civil Law introduce the seller's right to cure, we should not ask the buyer’s notification as a requisite for the seller's right to cure. On the other hand, if the requirements for the seller's right to cure are met, the seller should offer to cure it at his own expense, and should notify the method of cure and also the period of cure without undue delay. We need to introduce the clause : “In case that the offer to cure burdens the buyer with significant inconvenience or the cure would be inappropriate in the circumstances, such a situation entitles the buyer to refuse the offer to cure”, “Notwithstanding cure, the buyer retains the right to claim damages for delay as well as for any harm caused or not prevented by the cure.”, and the clause : “The seller has a reasonable period of time to effect cure.” And both the introduction of the clause : “The buyer may withhold performance pending cure, but the rights of the buyer which are inconsistent with allowing the seller a period of time to effect cure are suspended until that period has expired.”, and the introduction of the clause : “The right to cure is not precluded by notice of termination.”, are also appropriate to the Korean civil law.
참고문헌 (21)
- 김봉수, "유엔국제물품매매협약에서의 매도인의 추완권", 법학연구, (43), pp.75~98 (2011), 한국법학회
- 김영두, "추완청구권에 관한 민법개정시안의 검토", 법학연구, 24(1), pp.35~67 (2014), 법학연구원
- 김진우, "국제물품거래규범에 따른 매도인의 추완권에 관한 연구 - CISG, PECL 및 PICC의 규율과 우리 민법 개정에의 시사점 -", 외법논집, 33(3), pp.111~157 (2009), 법학연구소
- 박희호, "유럽공통매매법(CESL) 상의 소비자철회권에 관한 연구", 민사법학, 66, pp.365~403 (2014), 한국민사법학회
- 백경일, "유럽공통매매법안(CESL)에서의 계약체결규정에 관한 비교법적 검토", 비교사법, 20(2), pp.433~476 (2013), 한국비교사법학회
- 송덕수, "채무불이행에 관한 민법개정시안", 민사법학, 60, pp.151~191 (2012), 한국민사법학회
- 이상태, "除斥期間의 本質에 관한 硏究", 저스티스, 72, pp.107~137 (2003), 한국법학원
- 이진기, "민법개정안 채무불이행법에 관한 검토", 민사법학, 68, pp.169~223 (2014), 한국민사법학회
- Albers Gregor, "Die Erzwingung der Erfullung nach dem CESL im Vergleich mit dem deutschen Recht", Early science and medicine, 17(5) (2012)
- Burghard Pilz, "Internationales Kaufrecht" (2008), C.H.Beck
- Christian von Bar, "Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference<DCFR> vol.Ⅰ, vol.Ⅱ" (2010)
- Dirk Staudenmayer, "Der Kommissionsvorschlag für eine Verordnung zum Gemeinsamen Europäischen Kaufrecht", NJW, pp.3491~ (2011)
- HÜSEYİN CAN AKSOY, "Status Quo Bias, CISG and the Future of the Common European Sales Law", European Business Law Review, 24(4) (2013)
- J. von Staudingers, "Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen" (1995), Walter de Gruyter & Co.
- JERZY PISULIŃSKI, "THE CONTENT AND STRUCTURE OF THE CESL", Annales Universitatis Scientiarum Budapestinensis de Rolando Eotvos Nominatae: Sectio Iuridica, 53 (2012)
- Martin Schmidt-Kessel, "Der Entwurf für ein Gemeinsames Europäisches Kaufrecht :Kommentar" (2014), sellier european law publishers
- Mathias Walch, "Die Vertragsaufhebung im Vorschlag eines Gemeinsamen Europäischen Kaufrechts", euvr (2012)
- Nicole Kornet, "The Interpretation and Fairness of Standardized Terms: Certainty and Predictability under the CESL and the CISG Compared", European business law review, 24(3) (2013)
- Reiner Schulze, "Common European Sales Law (CESL): A Commentary" (2012), C.H. Beck・Hart・Nomos
- Simon Whittaker, "The Proposed 'Common European Sales Law': Legal Framework and the Agreement of the Parties", Modern Law Review, 75(4) (2012)
- Sonja Kruisinga, "The Seller's Right to Cure in the CISG and the Common European Sales Law", European review of private law : Revue européenne de droit privé= Europäische Zeitschrift für Privatrecht, 19(6) (2011)