1980 국제물품매매계약에 관한 UN협약(CISG)의 해석과 적용
Interpretation and Application of CISG
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CISG is a uniform law and at the same time a kind of codex, which must be recognised as belonging to a autonomous and independent legal order than the traditional nation produced law. A uniform methode of interpretation is indispensable in order to achieve and further the unification purpose of the Convention. The Convention strives to ensure a uniform interpretation and application through Art. 7 CISG. Uniformity can be only achieved by disallowing a homeward trend. Clear and unambiguous language is mostly regarded as a statute's primary source of meaning. But translation is special skill of its own. The interpretation of CISG follows the general methode of interpreting international treaties. Vienna Treaties Convention is widely regarded as embodying general principles of international law which can be used even by non-contraction nations. Art. 31-33 Treaties Convention provide a general framework of elements for interpretation - text, context, legislative history and purpose. Interpretation with respect to Conventions like CISG that tries to unify substantive law persues the uniform application of this instrument. Good faith in Art. 7 I CISG goes beyond the interpretation of the Convention alone; it is tied up with the performance of the contractual obligations. Good faith gives a court to build greater certainty to contractual parties, specially to party autonomy or freedom of parties. In order to understand and apply the unintended gap-filling provision of Art. 7 II CISG, it is essential to make clear distinction between the matters that are governed by the Convention and those which are not. The tool used to fill the gap in Convention is the analogous application of existing provisions. The methodical analysis concerning Art. 7 II CISG is theoretically relatively easy to achieve, but the use of general principles to solve controversies should also be kept in mind
Abstract
CISG is a uniform law and at the same time a kind of codex, which must be recognised as belonging to a autonomous and independent legal order than the traditional nation produced law. A uniform methode of interpretation is indispensable in order to achieve and further the unification purpose of the Convention. The Convention strives to ensure a uniform interpretation and application through Art. 7 CISG. Uniformity can be only achieved by disallowing a homeward trend. Clear and unambiguous language is mostly regarded as a statute's primary source of meaning. But translation is special skill of its own. The interpretation of CISG follows the general methode of interpreting international treaties. Vienna Treaties Convention is widely regarded as embodying general principles of international law which can be used even by non-contraction nations. Art. 31-33 Treaties Convention provide a general framework of elements for interpretation - text, context, legislative history and purpose. Interpretation with respect to Conventions like CISG that tries to unify substantive law persues the uniform application of this instrument. Good faith in Art. 7 I CISG goes beyond the interpretation of the Convention alone; it is tied up with the performance of the contractual obligations. Good faith gives a court to build greater certainty to contractual parties, specially to party autonomy or freedom of parties. In order to understand and apply the unintended gap-filling provision of Art. 7 II CISG, it is essential to make clear distinction between the matters that are governed by the Convention and those which are not. The tool used to fill the gap in Convention is the analogous application of existing provisions. The methodical analysis concerning Art. 7 II CISG is theoretically relatively easy to achieve, but the use of general principles to solve controversies should also be kept in mind
참고문헌 (27)
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