CISG의 적용에 관한 CIETAC 중재사례 연구- 중국과 홍콩 당사자간 분쟁을 중심으로 -
A Study on CIETAC Arbitration Case about Applying the CISG - Focus on Dispute between China and HK Parties -
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The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China)and HK is of particular importance. The status of HK under the CISG is currently unclear,however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the “Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however,made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b)of the CISG , the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.
Abstract
The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China)and HK is of particular importance. The status of HK under the CISG is currently unclear,however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the “Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however,made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b)of the CISG , the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.
참고문헌 (23)
- 문화경, "국제상사중재에서 분쟁의 실체의 준거법으로서 CISG의 적용", 통상법률, (112), pp.84~127 (2013), 법무부
- 석광현, "국제물품매매계약의 법리" (2010), 박영사
- 송오식, "중국계약법(합동법(合同法))상 위약책임", 민사법연구, 15(1) (2007), 대한민사법학회
- 송수련, "CISG상 손해배상과 대금감액의 관계에 관한 중국 CIETAC의 중재사례 연구", 무역상무연구, 51, pp.133~158 (2011), 한국무역상무학회
- 우광명, "중국계약법과 국제무역규칙의 비교연구 - CISG, PICC 그리고 PECL을 중심으로 -", 국제상학, 25(3), pp.23~46 (2010), 한국국제상학회
- 이정표, "중국 통일계약법의 위약책임체계", 국제상학, 19(3), pp.25~46 (2004), 한국국제상학회
- 채성국, "중국“合同法”(계약법)에서의 계약책임", 저스티스, (119), pp.125~169 (2010), 한국법학원
- 최홍섭, "유엔국제물품매매협약애서 손해배상의 범위", 인권과 정의, (342), pp.161~176 (2005), 대한변호사협회
- 韓世遠, "中國合同法与CISG", 법학논총, 31(1), pp.49~63 (2011), 법학연구소
- 中國國際經濟貿易仲裁委員會, "中國國際經濟貿易仲裁判決書選編(1996-2002)" (2002), 法律出版社
- 中國國際經濟貿易仲裁委員會, "中國國際經濟貿易仲裁判決書選編(2003-2006)" (2006), 法律出版社
- Ding Ding, "China and CISG In Theory and Practice" (1999), Faculté de droit Université de Genève
- Lewis Donald J, "The UN Convention for the International Sale of Goods: Implications for Hong Kong and China", Hong Kong Law Journal (1988), Law lectures for practitioners
- Saidov Djakhongir, "The Law of Damages in International Sales" (2008), Hart Publishing
- Schwenzer Ingeborg, "Commentary on the UN Convention on the International Sale of Goods" (2010), Oxford University Press
- Schroeter Ulrich G, "The Status of Hong Kong and Macao under the United Nations Convention on Contracts for the International Sale of Goods", Pace International Law Review, 16(2) (2004)
- Singh Sharon G. K., "CIETAC'S Calculations on Lost Profits under Article 74 of the CISG", Loyola University Chicago International Law Review, (Spring) (2007)
- Yang Fan, "A Uniform Sales Law for the Mainland China, Hong Kong SAR, Macao SAR and Taiwan - The CISG", Vindobona Journal of International Commercial Law and Arbitration, 15 (2011)
- Yang Fan, "The Application of the CISG in the Current PRC Law and CIETAC Arbitration Practice", Nordic Journal of Commercial Law, (2006 #2) (2006)
- Zeller Bruno, "Damages under the Convention on Contract for the International Sale of Goods" (2009), Oxford University Press