• Journal of Korea Trade
• /
• 제24권8호
• /
• pp.101-120
• /
• 2020

Purpose - The buyer's right to withhold performance is a useful and important self-help remedy to protect himself from the seller's breach of contract, and it is also the coercive means to induce the seller to perform his part of contract. However, the buyer's exercise of such a right often exposes himself to the risk of breaching the contract. This is generally due to his ignorance when he is entitled to the right and also uncertainties inherent in the law. Therefore, the purpose of this paper is to examine what the requirements should be fulfilled before the buyer exercises the right for the seller's actual breach of contract. Design/methodology - In order to achieve the purposes of the study, it executes a comparative study of the rules as to the requirements for the buyer's right to withhold performance for the seller's actual non-performance under the CISG and the CESL. It mainly focuses on performance due, the seller's non-performance, the buyer's readiness to perform and the requirement of notice. Findings - The main findings of this comparative study can be summarized as follows: Although the CISG has no expressive provision for the buyer's general right to withhold performance for the seller's actual non-performance, it may be inferred from the general principles the CISG underlies, synallagmatic nature of the contract. In addition, it can be drawn by analogy from relevant provisions of the CISG. On the other hand, the CESL expressively provides that the buyer has a general right to withhold performance where the seller fails to tender performance or perform the contract. Therefore, it seems that the position of CESL is rather easier and more apparent to allow the buyer to withhold performance for the seller's non-performance. Originality/value - Most of the existing studies on the right to withhold performance under the CISG have centered on the right to withhold performance for an anticipatory breach of contract. On the other hand, there have been few prior studies on the right to withhold performance for the actual nonperformance during a contractual period of performance. Therefore, this paper examined the requirements for the buyer's right to withhold performance under the CISG and the CESL in a comparative way for the seller's actual breach of obligation. In this conclusion, it may provide practical and legal considerations and implications for business people who are not certain about the right to withhold performance.

• 대한토목학회논문집
• /
• 제38권3호
• /
• pp.497-503
• /
• 2018

FIDIC 계약조건을 포함하여, 대부분의 국제건설계약조건에, 시공자들에게 부정적인 영향이나 재정적 부담을 필연적으로 야기시키는 유보금조항이 적용되고 있다. 본 연구를 통해 유보금 조항을 왜 적용하는지를 알아보고, FIDIC 계약조건에 포함된 이행보증과 하자관련 조항 및 계약해지 조항을 조사함으로써 유보금 적용에 대한 적정한 판단을 이끌어 내었다. 결론적으로 FIDIC 계약조건에 포함되어 있는 다수의 계약조건들과 이행보증 및 발주자에 의한 계약해지 조항 등의 내용을 고려할 때, 유보금 조항을 계약에 포함하는 것이 불필요하다.

• 한국중재학회지:중재연구
• /
• 제8권1호
• /
• pp.269-291
• /
• 1998

Change of circumstances subsequent to formation of international business contract raises two issues on both parties' obligation to perform business transaction concerned. One is impossibility of performance due to events beyond control of parties and the other is adaption of contract. In Anglo-American Law such an impossibility of performance is provided by the doctrine of Frustration and the doctrine of Practicability(UCC 2-615). In practice a "force majeure" clause should be included in contract defining the parties' mutual rights and duties if certain events beyond their control occur to safeguard themselves against possible impossibility. On the other hand the tendency of international trade is that alongside sales contracts, there are contract for supplies, for furnishing raw materials, for building industrial complexes, and transferring technology. One characteristic of these agreements is their duration. For in order to carry out these agreements, it is necessary to complete a series of closely interrelated operations which, in the normal course of events, take place over a number of years. It is often difficult for the parties, when finalizing their contract, to have a full grasp of all of the factors governing their relations. With a view to resolving difficulties such as compromise the continuous performance of a contract, parties may insert a regulatory clause in their contract providing for intervention by a third person after stating in specific and detailed fashion the circumstances in which their contract may be adapted.

• 무역상무연구
• /
• 제26권
• /
• pp.87-111
• /
• 2005

The buyer must pay the price under the contract and must take delivery of the goods of contract. The buyer's obligation to pay the price includes taking such steps and such formalities under the contract. The remedial system of the rights of the seller is easier than that of the buyer, for the obligations of the former are less complicated. The seller has the right to avoid a contract provided two conditions are fulfilled : (a) the buyer must have committed a fundamental breach of contract, or (b) the additional period for performance set by the seller in the case of non-performance must have expired. A decision is more difficult to take in the case of a delay where there is no fixed-term contract, to clarify the situation the seller may set a Nachfrist. It is essential that the contracting parties in Korea should understand the provisions of CISG.

• 한국무역상무학회:학술대회논문집
• /
• 한국무역상무학회 2004년도 제32회 산학협동 세미나
• /
• pp.79-104
• /
• 2004

The buyer must pay the price under the contract and must take delivery of the goods of contract. The buyer's obligation to pay the price includes taking such steps and such formalities under the contract. The remedial system of the rights of the seller is easier than that of the buyer, for the obligations of the former are less complicated. The seller has the right to avoid a contract provided two conditions are fulfilled : (a) the buyer must have committed a fundamental breach of contract, or (b) the additional period for performance set by the seller in the case of non-performance must have expired. A decision is more difficult to take in the case of a delay where there is no fixed-term contract, to clarify the situation the seller may set a Nachfrist. It is essential that the contracting parties in Korea should understand the provisions of CISG.

• 한국도로학회논문집
• /
• 제13권3호
• /
• pp.65-73
• /
• 2011

최근 들어 도로포장의 품질 개선을 위해 성능보증 계약제도를 도입하려는 연구가 활발히 진행되고 있다. 성능보증 계약제도는 구조물이 준공 이후부터 일정한 공용기간 동안 미리 정해진 성능수준을 유지할 것을 시공자가 보증하는 계약의 한 형태이다. 성능보증 계약제도는 구조물의 품질향상, 생애주기비용의 절감, 시공기술 개발 등에 기여하는 것으로 알려져 유럽 및 미국에서 사용이 증가되고 있다. 이 계약제도를 국내에 효과적으로 도입하기 위해서는 도로포장의 성능인자, 임계한도, 그리고 성능보증 기간에 대한 연구가 반드시 필요하다. 본 연구에서는 미국 미네소타, 인디애나, 플로리다 주의 콘크리트 포장 성능보증계약제도에 관한 문헌을 조사하였다. 국내 21개 고속국도 노선의 줄눈 콘크리트 포장 구간에서 포장성능에 영향을 미치는 주요 파손을 조사 및 분석하여 해외의 성능인자, 임계한도, 그리고 성능보증 기간과 비교하였다. 계획된 구간에서 장기간에 걸쳐 조사가 실시된다면 보다 정확한 비교가 가능할 것으로 예상된다.

• 한국IT서비스학회지
• /
• 제5권1호
• /
• pp.61-81
• /
• 2006

It is necessary to systematically explore the reform plans of the Software Industrial Promotion Law to systematically a representative high-added value future knowledge-based industry, software industry. The current Software Industrial Promotion Law provides only one provision on software business contract procedures, and the Civil Code, the National Contract law or Subcontract Fairness Law regulate other things, so the features of software industry are not properly reflected. To the contrary, the Information Communication Construction Law or the Construction Basic Law effectively prevent disputes by providing material and detailed provisions. Therefore the current software industry needs to be shifted from promotion to fundamental one. That is, as the software industry takes up a large portion at present, so the law should have basic procedural provisions. Also the National Contract Law governs only the contract procedures of public sector, so there should be business performance procedural provisions to regulate the software business formalities of civil sector. And the National Contract Law controls the sale, construction and service of articles at separate contract procedures, but software business contains construction and service characters simultaneously, so there should be business performance procedures fit for software business. Thus this study presented the legislative need and bill on the performance procedures of software business.

• 무역상무연구
• /
• 제66권
• /
• pp.119-148
• /
• 2015

Generally, the liability for breach is defined as the civil liability that arises from the conduct of violation of a contract. There are two notable principles governing liability for breach that have fundamental impacts on the unified Contract Law of the People's Republic of China (hereinafter Chinese Contract Law) in the remedies. In China, during the drafting of the Contract Law, there was a great debate as to whether damages for breach of contract ought to follow the fault principle or to follow the strict liability principle. Ultimately the Chinese Contract Law follows the model of the CISG on this point, namely, it follows the strict liability principle (article 107) with an exemption cause of force majeure. Under Chinese Contract Law, it is interpreted as strict liability in principle. Strict Liability is a notion introduced into Chinese Contract Law from the Anglo-Saxon Law. The strict liability or no fault doctrine, on the contrary, allows a party to claim damages if the other party fails to fulfill his contractual obligations regardless of the fault of the failing party. Pursuant to the strict liability doctrine, if the performance of a contract is due, any non-performance will constitute a breach and the fault on the party in breach is irrelevant. This paper reviews problems of legal character or legal ground of contractual liability in Chinese contract law. Specifically, focusing on the interpretation of Chinese contract law sections and analysis of three cases related contractual liability in freight agency, the paper proposes some implications of structural features of Chinese contract law and international commercial transactions.

• 무역상무연구
• /
• 제44권
• /
• pp.3-29
• /
• 2009

The PECL have been drawn up by an independent body of experts from each member state of the european union under a project supported by the european commission and many other organizations. Salient features of the general provisions of the PECL, freedom of contract and pecta sunk servanda, good faith and fair dealing, most of the PECL are non-mandatory. The CISG uses the term fundamental breach in various setting. The concept of fundamental breach is a milestone in its remedial provisions. Its most important role is that it constitutes the usual precondition for the contract to be avoided(Art. 49., Art. 51., Art. 64., Art. 72., Art. 73). In addition, where the goods do not conform with the contract, a fundamental breach can give rise to a requirement to deliver substitute goods. Furthermore, a fundamental breach of contract by the seller leaves the buyer with all of his remedies intact, despite the risk having passed to him(Art. 70). Basically, PECL, PICC generally follows CISG, it was similar to all the regulation's platform though the terms and content sometimes differ. For example regarding to the non-performance and remedies, in the case of non-performance, that is the PECL/PICC term analogous to breach of contract as used in the CISG. Furthermore the PECL/PICC used fundamental non-performance refered to in PECL Art. 8:103 ; PICC Art. 7.1.1. correspond generally to the concept of fundamental breach referred to in CISG Art. 25. The main significance of the fundamental non-performance, in any systems, is to empower the aggrieved party to terminate the contract. The need for uniformity and harmony in international commercial contracts can be expected to lead to growth of international commerce subject to the CISG, PICC, and PECL. It is hoped that the present editorial remarks will provide guidance to improve understanding between the contractual party of different countries in this respect and following key-words.

• 한국프랜차이즈경영연구
• /
• 제6권2호
• /
• pp.67-85
• /
• 2015

This study attempts to measure the performance of franchise brands using the Enterprise Contract Management(ECM) and Franchise Contract Management Leverage(FCML). The data were collected from 14 chicken franchise brands and 16 coffee franchise brands. This research suggests some implications as follows. Chicken franchise brands are confronted with the slow growth, but coffee franchise brands still have the potential growth. According to FCML, as well, it shows that chicken franchise brands should focus on qualitative performance through franchise store management to achieve sustainability, and coffee franchise brands need the managerial strategies to maximize franchisees' sales profit, which leads increasing franchisor's business performance ultimately.