CISG에 있어서 물품의 부적합과 계약해제48) -CISG-AC Opinion no.5의 해석에 있어서 본질적 계약위반의 의미를 중심으로－

Abstract

CISG-AC Opinion no 5 is about the buyer’s right to avoid the contract in cases of non-conforming goods or documents. When this is interpreted on a fundamental level, the following conclusion can be reached. When international goods are being sold, according to article 35, the seller has the responsibility of delivering the appropriate good. However, when this deal is not upheld, and a good that is not in conformity with the contract is delivered, the seller must bear a certain amount of responsibility. In this case, the judgment of the default at hand is left to article no. 35. As stated in said article, an item’s default or inconformity is determined by the two parties’ contract. Hence, on principle, the contract needs to be the standard of judgment. When it is unclear or insufficient, the item’s purpose of use and its quality should be the standards of measure. Additionally, because delivering the inappropriate item is a breach of contract on part of the seller, a uniform liability system is being utilized. The duality liability system that is being upheld in Korean laws (nonfulfillment of an obligation laws and responsibility for the warranty) needs to be rejected and the special characteristics of the responsibility for the warranty must be threaded in as a requirement. A uniform liability system must be made, and subsequent issues should be judged upon these rules. In this circumstance, in terms of utility, we compared this with our nation’s laws on the effects that a uniform liability system can have in deal making. Also, if the item’s lack of conformity with the contract is also the seller’s fault, according to the way the contract was worded, the buyer has two options to fix the situation. This manuscript has analyzed the actual meaning of the fundamental breach of contracts based on CISG-AC Opinion no.5 and other annotations. We have also examined actual cases.