• 무역상무연구
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• 제66권
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• pp.25-46
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• 2015

The purpose of this paper is to provide a legal implication about conformity of goods in the international commercial transactions. There are so many legal relationship after the formation of contract. The most of important thing among the obligations of seller is to provide conformal goods which are of quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. If seller violate above duties, seller take the warranty liability. However, CISG describe the conformity of the goods instead of the warranty as follows. First, CISG Art.35(1) states standards for determining whether goods delivered by the seller conform to the contract and Art.35(2) describes standards relating to the goods' quality, function and packaging that, while not mandatory, are presumed to be a part of sales contracts. Article 35(2) is comprised of four subparts. Two of the subparts (article 35(2) (a) and article 35(2)(d)) apply to all contracts unless the parties have agreed otherwise. Second, CISG Art.36 and 38 deals with the time at which a lack of conformity in the goods must have arisen in order for the seller to be liable for it. If seller lack of conformity becomes apparent only after that time, seller is liable for a lack of conformity existing when risk passed to the buyer. Third, CISG Art.49 describe that a buyer who claims that delivered goods do not conform to the contract has an obligation to give the seller notice of the lack of conformity. The most of important things about CISG articles and precedents is that buyer is aware of the lack of conformity and notice it to seller. Failure to satisfy the notice requirements of article 39 eliminates a buyer's defence, based on a lack of conformity in delivered goods, to a seller's claim for payment of the price. Consequently, parties of contract had better agree to the notifying times about lack of conformity. Also, If seller fined the non-conformity, seller has to notify this circumstance to the buyer within short period or agreed time.

• 무역상무연구
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• 제39권
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• pp.27-55
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• 2008

The concept of non-conformity is stipulated at Art. 35, CISG. According to the Art. 35, there is no directly stipulated concept of non-conformity. But Art. 35 said that the Seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. Accordingly, the concept of non-conformity contains the conformity of quality, quantity, description, delivery of different goods and documents. Art. 39 does not specify the form of notice required. So parties can require a particular form by agreement. If there is no agreed form of notice, buyer' s notice must be sent by means appropriate in the circumstances. And Art. 39 states that the required notice of lack of conformity must be given to the seller. Notice of defects conveyed by the buyer to an independent third party is not found to have been given by means appropriate in the circumstances. And Art. 39 is subject to the parties' power under Art. 6 to derogate from or vary the effect of any provision of the Convention. When determining which requirement must be satisfied by the buyer is specifying the nature of any lack of conformity, a mixed objective-subjective standard should be applied, which has regard to the respective commercial situation of the buyer and the seller, to any cultural differences, but above all, to the nature of the goods. Also to determine the specificity requirement is to satisfy the purpose of notice of lack of conformity.

• 무역상무연구
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• 제71권
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• pp.37-58
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• 2016

CISG Article 50 contains the remedy of price reduction but limits it if the seller has a right to cure. Reduction of price presupposes that the seller delivers non-conforming goods, and that the buyer decides to accept them nevertheless. The remedy of price reduction differs from all other remedies provided in CISG with regard to it effects and to the time-limits. As to the time-limits, unlike Articles 46 and 49, Article 50 does not contain the element within a reasonable time. CISG imposes no period of time for his reducing the price. The buyer's right to declare a reduction of the price is expressly subject to the seller's right to remedy any failure to perform his obligations pursuant to Articles 37 and 48. The problem lies in determining from where to take the figures for comparing the value of the goods contracted and of those delivered. The price level in this place will usually determine his considerations as to resale or repair of the defective goods. The buyer must examine the goods, or cause them to be examined, within, as short a period as is practicable in the circumstances. The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.147-175
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• 2014

In contracts for the international sale of goods, a seller must deliver appropriate goods and hand over relevant documents according to a contract, which will transfer the ownership of the goods to a buyer. In this case, if there are defects in the contracted goods, the warranty liability will occur. However, in the United Nations Convention on Contracts for the International Sale of Goods (CISG), a term-the conformity of the goods to the contract-is used universally instead of the warranty. According to the CISG, a seller must deliver goods in conformance with the relevant contract in terms of quantity, quality, and specifications, and they must be contained in vessels or in packages according to the specifications in the contract. In addition, a certain set of requirements for conformity will be applied implicitly except when there is a separate agreement between parties. Further, the base period of conformity concerning the defects of goods is the point when the risk is transferred to the buyer. A seller shall be obliged to deliver goods that do not belong to a third party or subject to a claim then, and such obligations shall affect the right or claim of a third party to some extent based on intellectual property rights clauses. If the goods delivered by the seller lack conformity, or incur right infringement or claim of a third party, then it shall be regarded as a default item per the obligation of the seller. Thus, the buyer can exercise diverse means of relief as specified in Chapter 2, Section 3 (Article 45-Article 52) of the CISG. However, such means of relief have been utilized in various ways for individual cases as shown in judicial precedents made until now. Contracting parties shall thus keep in mind that it is best for them to make every contract airtight and they should implement each contract thoroughly and faithfully to cope with any possible occurrence of a commercial dispute.

• 무역상무연구
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• 제34권
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• pp.27-52
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• 2007

As in more than half of the litigated cases, non-conformity of the goods is alleged by the buyer and, hence, the question aries of whether the buyer has given notice within a reasonable time and is thus allowed to rely on the lack of conformity at all, differences in interpreting the meaning of "reasonable time" in Article 39(1) CISG endanger uniformity of international sales law in a core area. This uniform interpretation of the "reasonable time" in Article 39(1) CISG can, however, not be achieved by merely making recommendations to courts and arbitral tribunals that case law from other CISG jurisdictions should be considered. This can at best lead to confusing results. As you know, the determining of reasonable time is depending on the circumstances concerned with the particular case. So the term 'reasonable time' has proven too imprecise due to its flexibility without defined uniform scale to assist the practitioners in a uniform application of Art. 39(1). Therefore I suggested the factors that influenced the determining of the reasonable time. The factors currently influencing whether an Art. 39(1) notice is given within reasonable time in international practice are: any international trade usage and practices, the nature of the remedy chosen by buyer, the nature of the goods delivered and the mode of dealing with the goods.

• 무역학회지
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• 제45권1호
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• pp.83-100
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• 2020

This study aimed to provide the most accurate analysis possible regarding the buyer's duty to examine goods and give notice, or the like, of non-conformity to the seller under Belgian law in comparison with the CISG and CESL. Even though Belgium is the capital of the Europe Union, most of its laws remain untranslated in English. Therefore, this study may offer key insights into the specificities of Belgian law, which while being derived from the French Napoleon Code has its own practices coded into its Case Law. It also makes a comparison with the new CESL and CISG in order to evaluate their respective influence on national law and other infructuous attempts to harmonize Belgian law for the internal European market. Evaluating the differences of each system in the spirit of comparative law may be a good basis for the development of laws in each jurisdiction.

• 무역상무연구
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• 제40권
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• pp.3-30
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• 2008

This article attempts to describe and analyze the rules on the buyer's remedies for lack of conformity under PELS. It shows that such remedies under the PELS operate in a two-tier remedial scheme which is alien to both domestic and international legal systems. That is, repair and replacement take the position of primary remedy, whereas termination, price reduction and damages are secondary remedies which are available only where the primary remedies cannot be invoked. Notwithstanding its superiority, the PELS have some drawbacks in several aspects. First, the PELS seems to place its focus on the factor of cost except the other factors, for instance, the significance of the lack of conformity, when one decides whether the first tier remedies cause the seller unreasonable effort or expense. It is argued that the factors can be considered by referring to art. 1:302 PECL. Second, the PELS does not expressively provide any exclusion of the seller's right to choose between repair or replacement on the basis of unreasonable uncertainty in reimbursing the expenses advanced by the buyer. It argues that if there is such uncertainty, it should be regarded as causing the buyer an unreasonable inconvenience under art. 4:204(1). Third, the PELS does not seem to properly reflect the consumer's interests in that most consumers prefer to have the absolute right of termination as against the commercial sellers who have a relatively stronger bargaining position. The reasons for that is that there is a big hurdle, i.e., a hierarchy of remedies, to be overcome by the consumer to battle with the commercial seller, and that unavoidable vagueness in defining a minor lack of conformity has been often used against the consumer, but in favour of the commercial seller with a strong bargaining position.

• 무역상무연구
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• 제20권
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• pp.63-82
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• 2003

The time of examination of buyer in international sales contract is very significant, because the time is related with the period of claim in buyer's aspect. From the legal point of view, the time of delivery, the time of examination and the time of quality decision should be in accord. But the buyer, whose main place of business is located in importing country, wants to examine the goods in his own country. Therefore in CIF or FOB Contract, the place of delivery and the place of examination are divided. Thus the CISG, the Common Law System and the Civil Law System including Korean Law stipulate the buyer's examination at the destination if the sales contract involves carriage of the goods. This author, from the buyer's perspective, would like to make the following suggestions in regard to the time of examination when the sales contract is made. First, the time of examination and the time of quality decision should be in accord, even though the time of delivery is different. Second, the buyer should clearly indicate the time, the place, the inspector, the particulars and the burden of proof in regard to examination when contracting. Third, the buyer should also clearly indicate the period of notice for the lack of conformity in Claim Clause of sales contract, which should be counted from the time of examination. Fourth, the buyer should remember that he many lose the right to rely on the lack of conformity of the goods if he does not give the seller notice thereof within the stipulated time or reasonable time. Finally, if the buyer wants, to examine the goods at the place of shipment, it is desirable for the buyer to designate internationally recognized inspection organization like SGS.

• 통상정보연구
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• 제8권1호
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• pp.243-257
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• 2006

This study is to introduce the Chinese Contract Law against non-performance of the contract and to solve the wide range of problems involving to executing the trading contract. The parties' liability for the period of performance, the place of performance, the failure to deliver conforming goods together with it's nature of the lack of conformity, and the methods of compensation against damages and the force majeure clauses application. Those issues affect directly to commercial transactions in international business. The focus is more on the interrelationship of private individuals in its trade and on aiming to remove the legal obstacles from the Chinese Contract Law to freely flow of international trade. Reference may include foreign corrupt practices, Conventions on Contracts for the International Sale of Goods and Laws of England, France, and Japan. This study has brought the efforts of these issues in the full spectrum of performance and with concentrations on effectiveness to avoid the different viewpoints of the general principles of CISG and commercial practice founded pre-eminently. This study, in presenting the legal framework, will contribute to a better understanding of the purpose of rules of Chinese Contract -Law as they interact to the benefit of the parties involved in international trade transactions. The writer believes that a problem-oriented approach and the concentration as outlined above would offer a different perspective for law faculty teaching in this area and hope that this study can be sufficiently diverse to satisfy many of those views.

• 무역상무연구
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• 제44권
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• pp.31-55
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• 2009

This study attempts to provide a comparative overview of the liability systems Korean law and the PELS adopt, that is, the approaches taken by Korean law and the PELS to deal with various irregularities of contractual performance. In addition, it examines in a comparative way the questions of what is the position of the seller's liability for his delivery of defective goods under the chosen liability system and what is the legal nature of the seller's liability. The study finds that the dual liability system taken by Korean law has caused some complexities as to the matter of which liability is applicable in some borderline cases. The problem in such complexities is originated in that the remedies available and the limitation period applicable are differentiated in accordance with one's different categorization among three types of default under the general liability and defective performance under the seller's guarantee liability. In this light, the study argues that the unified liability system under the PELS is superior because its concept of non-performance embraces in a unitary manner all the aspects of default including defects in quality, quantity and title. In addition, it finds that Korean law has suffered endless debates on the question of what are the true contents of the same remedies of rescission and damages provided under the seller's guarantee liability as under the general liability. The debates have been come along on the basis of the traditional presumption among some of civil law jurisdictions that two liabilities be different in terms of not only their legal nature but also their contents of remedies. The study argues that the problem may be circumvented, first, by another way of thinking that the unified liability in Korean law is inferred from the specification of the identical remedies for both the general liability and the seller's guarantee liability under the KCC, second, by the preposition that the requirement of fault be depended upon what remedy the buyer seeks to claim rather than what liability he does to rely on.