보통유럽매매법상 해제의 효과에 관한 고찰: 원상회복을 중심으로

Abstract

In relation to the effect of termination, Common European Sales Law(CESL hereinafter) provides regulations of restitution from Art. 172 through Art. 177. Through the title of the chapter, CESL makes it sure to clarify the principle of restitution as an effect of termination. According to CESL, however, termination of a contract performed in instalments or parts can be considered as an exception and what was received is not required to be fully restored. The monetary value of goods, digital content or service under exceptional conditions is mentioned in Art. 173, and measure of valuation for the received goods or performance is provided with details. Art. 174 deals with the payment for interest resulted from the use of goods; Art. 175 accounts for the compensation for what a recipient has expended while using goods or digital contents. When seen as a whole, provisions in Art. 172 make central principles of Chapter 17 and they are supported and supplemented by the Arts. 173 through 177. CESL is different from other European laws in that its main goal is on equal consideration of interests between sellers and consumers and it makes provisions in Chapter 17 mandatory for consumer protection. CESL enumerates in detail what a recipient of digital contents may claim when she/he is requested to fully restore what she/he has received. Such careful concern appears to be quite thoughtful, but still provisions in the Arts. 172 through 177 seem way too far complicated when the purpose of the provisions and law and order of CESL are taken into account. In the case of sales that involve a large amount of service such as training for the usage, repair, or maintenance, applications of the regulation become more complicated since it is hard to determine whether the case is involved with a contract of sales or that of work. More importantly, provisions in this chapter fail to equally deal with obligations and responsibilities of both parties. Provisions in relation to earnings management based on the principle of equity are unique and new; however, even without these regulations, problems could be sorted out if the law already in existence is interpreted with common sense or by principle of good faith, or weighed by equal consideration of interests. Therefore, what is provided in this chapter seems to lack usefulness and effectiveness.