CISG상 제79조 장애의 법리와 적용사례에 관한 연구 - 네덜란드 2008년 7월 9일 Maastricht 지방법원 판결을 중심으로 - (A Study on the Cases concerning Impediment concept under the CISG Article 79)

서지정보

· 발행기관 : 성균관대학교 법학연구원
· 수록지 정보 : 성균관법학 / 24권 / 2호 / 501 ~ 525페이지
· 저자명 : 서지민, 최준선

초록

As contracts for the international sale of goods, contrary to domestic ones are concluded among parties from different backgrounds, complicated situation can unexpectedly emerge in the course of transactions. Especially, anything that hinders transaction of the contracts will lead to contract non-fulfillment and each party's reaction could be controversial.
In regard to this, U.N. Convention on Contracts for the International Sale of Goods which was enacted in 1980 is significant as it includes exemption as to non-fulfillment of contractual obligation. According to clause 1 of article 79 of CISG, each party is not responsible for such non-fulfillments if they are caused by impediments that are beyond of its control; if such impediments were not expected to occur at the time of contract agreement; and if one can prove its consequence were not unavoidable or surmountable.
In this context, article 79 of CISG is crucial as it defines fundamental rules that allow obligation exemption at certain level.
However, different law systems and customs between nations might cause controversial interpretation issue in order to apply article 79. Subjective interpretation by each nation is against CISG's intention, which was established to mitigate legal uncertainty due to different law systems.
Therefore, in order to minimize such controversies, unified general principles should be established by taking various approaches and reflecting the view of international commerce rather than domestic prejudice. In addition, the definition of impediment should be written in a way that is acceptable to every party to realize fair obligation exemption.

영어초록

As contracts for the international sale of goods, contrary to domestic ones are concluded among parties from different backgrounds, complicated situation can unexpectedly emerge in the course of transactions. Especially, anything that hinders transaction of the contracts will lead to contract non-fulfillment and each party's reaction could be controversial.
In regard to this, U.N. Convention on Contracts for the International Sale of Goods which was enacted in 1980 is significant as it includes exemption as to non-fulfillment of contractual obligation. According to clause 1 of article 79 of CISG, each party is not responsible for such non-fulfillments if they are caused by impediments that are beyond of its control; if such impediments were not expected to occur at the time of contract agreement; and if one can prove its consequence were not unavoidable or surmountable.
In this context, article 79 of CISG is crucial as it defines fundamental rules that allow obligation exemption at certain level.
However, different law systems and customs between nations might cause controversial interpretation issue in order to apply article 79. Subjective interpretation by each nation is against CISG's intention, which was established to mitigate legal uncertainty due to different law systems.
Therefore, in order to minimize such controversies, unified general principles should be established by taking various approaches and reflecting the view of international commerce rather than domestic prejudice. In addition, the definition of impediment should be written in a way that is acceptable to every party to realize fair obligation exemption.

참고자료

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