유럽공통매매법(CESL)안에서의 약관의 충돌 문제 (Conflicting standard contract terms (‘battle of the forms’) in the CESL (Proposal))

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 66권 / 447 ~ 473페이지
· 저자명 : 신동현

초록

Art. 39 of the Common European Sales Law (CESL) [Proposal] pertaining to the issues of conflicting standard contract terms (the so-called ‘battle of the forms’) is almost identical to the provisions of the PECL and the DCFR in terms of contents, despite the significant contrast to the CISG. However, the CESL would have the certain significance in relation to the scope of application, considering that there is a difference in the scope of application for each norm. In conjunction with the issue of conflicting standard contract terms, Art. 39 of the CESL (Proposal) confirms once again the regulatory details of the PECL and the DCFR, which adopt the knock-out rule in contrast to the CISG which is considered to follow the last shot rule as a means to resolve aforesaid issue, thus confirming that the knock-out rule has taken root as the prevalent solution to the issue of conflicting standard contract terms in the unification and harmonization of the Europe's private laws or contract laws which has made progress with a series of consistency. Moreover, it is noticeable that the knock-out rule is proposed in the form of the binding regulation which is more applicable directly to the EU member countries compared to the PECL or the DCFR that may be relegated to the simple reference materials or model that does not have any legally binding force. In relation to the difference from the PECL and the DCFR, the utility of the PECL·DCFR may be enhanced through the application to the CESL, etc., as shown in the regulations pertaining to the conflicting standard contract terms, and there might be the room to replace the regulatory provisions of the CISG with the details, such as the CESL, in the case of the contracting parties that are the signatories of the CISG.
Finally, it is considered that the CESL would make certain contribution to the unification and harmonization of the civil codes and contract laws, and Art. 39 is expected to have an implication for the revision of the Korean Civil Code, etc. in Korea.

영어초록

Art. 39 of the Common European Sales Law (CESL) [Proposal] pertaining to the issues of conflicting standard contract terms (the so-called ‘battle of the forms’) is almost identical to the provisions of the PECL and the DCFR in terms of contents, despite the significant contrast to the CISG. However, the CESL would have the certain significance in relation to the scope of application, considering that there is a difference in the scope of application for each norm. In conjunction with the issue of conflicting standard contract terms, Art. 39 of the CESL (Proposal) confirms once again the regulatory details of the PECL and the DCFR, which adopt the knock-out rule in contrast to the CISG which is considered to follow the last shot rule as a means to resolve aforesaid issue, thus confirming that the knock-out rule has taken root as the prevalent solution to the issue of conflicting standard contract terms in the unification and harmonization of the Europe's private laws or contract laws which has made progress with a series of consistency. Moreover, it is noticeable that the knock-out rule is proposed in the form of the binding regulation which is more applicable directly to the EU member countries compared to the PECL or the DCFR that may be relegated to the simple reference materials or model that does not have any legally binding force. In relation to the difference from the PECL and the DCFR, the utility of the PECL·DCFR may be enhanced through the application to the CESL, etc., as shown in the regulations pertaining to the conflicting standard contract terms, and there might be the room to replace the regulatory provisions of the CISG with the details, such as the CESL, in the case of the contracting parties that are the signatories of the CISG.
Finally, it is considered that the CESL would make certain contribution to the unification and harmonization of the civil codes and contract laws, and Art. 39 is expected to have an implication for the revision of the Korean Civil Code, etc. in Korea.

참고자료

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