특정물매수인의 하자보수청구권 (The Specific Goods Buyer's Right to Repair Concerning Non-conformity Goods)

서지정보

· 발행기관 : 한국사법학회
· 수록지 정보 : 비교사법 / 17권 / 1호 / 45 ~ 91페이지
· 저자명 : 김봉수

초록

When the goods that the specific goods seller provided have defects, according th toe Korean civil code §580, the buyer can have the right for the avoidance of contract and the rights to claim for the damages due to the defect, while he/she cannot have the right to repair. But when the seller delivers the goods that do not conform to the contract, it is the non-performance, because he has a duty to deliver goods that have no defect. In this regard, when such a non-performance occurs, the buyer's right to require the seller's performance must be considered.
And also the right of the buyer to repair needs to be allowded, considering the systematical point of view of civil law by the principle of priority of require performance and with the idea of favoring contracts, the fact that the repair is the remedy which considers the interests of contract parties, the law economical point of view, and the fact that theseller’s liability for non-conformity goods are adjusted to today’s reality. The legal basis of buyer's right to repair is Art. 581(2) of the Korean Civil Code, which provides the generic goods buyer’s right to require delivery of substitute goods. The buyer is able to avoid the contract when it may not be accomplished due to the defect of the goods. In this case, the possibility to cure the defect of the goods must be considered, with the consideration of whether the contract may be accomplished. Accordingly when the defect of the goods is severe, and may not possible for the seller to cure it, the buyer may be able to avoid the contract.
However, when the defect may be repaired by the seller, although it is severe, or when it is only minor, the seller may not be able to avoid the contract. In this context, the competition between the right to avoid the contract and the right to require performance may not be allowed. However, the issue may occur – except avoidance of contract, the buyer may choose her remedies? The answer is positive, because the Art. 581 ⑴, ⑵ of the Korean Civil Code provides the buyer choose her remedies and also because the Art. 667 ⑴, ⑵ of the Korean Civil Code provides that the person who ordered the work, may claim damages in lieu of, or together with, rectification of the defect.
If the buyer may require the seller to perform concerning non-conformity goods, there must be defect of the goods. The defect may be judged according to the parties’ agreement. If there is no such agreement, the defect may be considered by ordinary usage of use of the goods. The seller’s performance concerning non-conformity goods occurs from seller’s non-performance. In this regard, the seller has to pay for the cost of later performance. In addition, the place of the seller’s performance may be the place where the goods are located. However, the buyer’s right to require the seller’s performance concerning non-conformity goods may not be possible due to impossibility, extremely high costs, or inconvenience. In these cases, the seller may refuse his later performance.

영어초록

When the goods that the specific goods seller provided have defects, according th toe Korean civil code §580, the buyer can have the right for the avoidance of contract and the rights to claim for the damages due to the defect, while he/she cannot have the right to repair. But when the seller delivers the goods that do not conform to the contract, it is the non-performance, because he has a duty to deliver goods that have no defect. In this regard, when such a non-performance occurs, the buyer's right to require the seller's performance must be considered.
And also the right of the buyer to repair needs to be allowded, considering the systematical point of view of civil law by the principle of priority of require performance and with the idea of favoring contracts, the fact that the repair is the remedy which considers the interests of contract parties, the law economical point of view, and the fact that theseller’s liability for non-conformity goods are adjusted to today’s reality. The legal basis of buyer's right to repair is Art. 581(2) of the Korean Civil Code, which provides the generic goods buyer’s right to require delivery of substitute goods. The buyer is able to avoid the contract when it may not be accomplished due to the defect of the goods. In this case, the possibility to cure the defect of the goods must be considered, with the consideration of whether the contract may be accomplished. Accordingly when the defect of the goods is severe, and may not possible for the seller to cure it, the buyer may be able to avoid the contract.
However, when the defect may be repaired by the seller, although it is severe, or when it is only minor, the seller may not be able to avoid the contract. In this context, the competition between the right to avoid the contract and the right to require performance may not be allowed. However, the issue may occur – except avoidance of contract, the buyer may choose her remedies? The answer is positive, because the Art. 581 ⑴, ⑵ of the Korean Civil Code provides the buyer choose her remedies and also because the Art. 667 ⑴, ⑵ of the Korean Civil Code provides that the person who ordered the work, may claim damages in lieu of, or together with, rectification of the defect.
If the buyer may require the seller to perform concerning non-conformity goods, there must be defect of the goods. The defect may be judged according to the parties’ agreement. If there is no such agreement, the defect may be considered by ordinary usage of use of the goods. The seller’s performance concerning non-conformity goods occurs from seller’s non-performance. In this regard, the seller has to pay for the cost of later performance. In addition, the place of the seller’s performance may be the place where the goods are located. However, the buyer’s right to require the seller’s performance concerning non-conformity goods may not be possible due to impossibility, extremely high costs, or inconvenience. In these cases, the seller may refuse his later performance.

참고자료

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