• Journal of Korea Trade
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• 제26권5호
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• pp.88-105
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• 2022

Purpose - This paper studies whether economic sanctions can be used as grounds for a party to an international sales contract to get an exemption if he fails to meet his contractual obligation. Because the answer can differ depending on the governing law of the contract, this study focuses on CISG, the most widely recognized international uniform legal instrument as the governing law of the international sale of goods. Design/methodology - This paper focuses on analyzing the conditions to meet before getting an exemption under CISG. For such analysis, this paper examined various scholarly writings, cases, and hypothetical examples reflecting a wide variety of economic sanction measures. Findings - The findings of this paper are as follows. The main provision for exemption under CISG is Article 79(1), which provides for an exemption for a party that failed to perform if such failure was caused by an impediment that was uncontrollable, unforeseeable, and unavoidable; either a seller or a buyer may rely on the Article for his non-performance, delay, or defective performance. The Article is applicable not only where the economic sanction caused impossibility of performance but also where it caused hardship. The economic sanction will likely be found to be an uncontrollable impediment; however, it will be relatively more difficult to prove it to be unforeseeable or unavoidable. Originality/value - The subject of this paper is whether a party can be exempted from liability under CISG when he fails to perform his contractual obligations due to economic sanctions. Given that this issue is now actually faced by many involved in international trade, it is expected to provide practical help to practitioners and companies alike.

• 한국항만경제학회지
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• 제36권1호
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• pp.59-76
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• 2020

본 연구는 중고선박 매매계약 체결 시 사용되는 계약사의 주요 선택기준에 대한 요인을 분석하여 상황별 합리적인 계약의 선정에 도움을 주고자 분석한 것이다. 선박 매매 양식의 여러 선정요인 가운데 우선적으로 고려해야 하는 요인을 파악하기 위해서 선박매매를 담당하는 전문가와 선사의 담당자와 인터뷰를 통하여 세부요인을 추출한 다음 AHP분석을 실시하였다. AHP분석을 위해서 3가지 요인을 Level 1로 하였으며, 각 상위계층에 5가지의 하위 세부요인을 Level 2로 구성하여 전무가 집단의 설문조사를 통해 종합 중요도 순위를 분석하였고, 두 개의 계약양식의 선정기준으로 요인을 비교분석하였다. 본 연구의 결과, 첫째, 계약 양식의 선정요인에서 계약의 유지능력, 인도장소와 시점, 내용의 완결성 등이 가장 중요한 요소이며, 둘째, 계약양식의 선정과정에서 양자 요인을 비교한 결과, 지정권자의 지위와 인도장소와 시점의 경우 양자의 선호도의 큰 차이는 없었다. 그러나 내용의 완결성, Payment & Deposit, 최신 거래의 흐름 반영, 지역적 요인 등의 나머지 요인은 NIPPON1999의 28.5%에 비해 NSF가 약 70% 이상의 높은 선호도를 보였다. 따라서 이러한 결과를 인식하여 선박매매 당사자가 상황에 맞게 계약서를 작성하고 두 계약양식의 차이점을 명확히 인지하고 보다 합리적인 조항을 선택함으로써 분쟁을 예방하는 것이 중요하다.

• 한국콘텐츠학회논문지
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• 제21권3호
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• pp.626-633
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• 2021

주택도시보증공사는 주택분양보증 사고발생시 환급이행을 신청할 경우 분양계약자에게 특별한 사정이 없는 한 입주금을 환급하여 보증 책임을 부담한다. 주택도시보증공사는 환급이행을 약관규제법에 근거하여 거절할 수 있으나 이와 관련하여 이해 당사자 간에 분쟁이 지속적으로 발생되고 있다. 이에 환급이행에 따른 법적쟁점에 대한 문제점과 개선방안을 연구하는 것을 목적으로 한다. 첫째, 약관규제법상 보증효력 및 보증범위의 문제 둘째, 주택도시보증공사의 조건부 제3자를 위한 보증계약의 문제 셋째, 대법원의 기존 판례의 태도의 문제점을 대상으로 검토하였다. 이런 법적 쟁점들을 검토한 결과 환급이행에 따른 약관해석은 신의 성실의 원칙에 따라 해석되어지고 있으나 개별 사안에 따라 판례들이 긍정과 부정 판결로 갈라질 수 있음을 확인하였다. 또한 주택분양보증은 조건부 제3자를 위한 보증계약임에도 불구하고, 이해 당사자와 같은 적극적 다툼으로 수분양자가 선의의 피해를 보는 것을 확인하였다. 이에 주택도시보증공사가 고객의 주거안정을 위한 설립취지에 맞도록 역할과 협력사항의 개선방안을 제안하였다.

• 무역상무연구
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• 제13권
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• pp.83-103
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• 2000

Through the this paper, a conclusion could be derived from CISG PICC MISC made by UNIDROIT, UNCITRAL, ICC of representative system making out a draft for uniform law, convention, trade usages. (1) In short, like most int'l sales rules applicable to commercial contracts, these rules play a supporting role, supplying answers to problems arising from transaction between the parties. (2) Though every one has in its own way a special feature, use of MISC made on the basis of actual facts which the parties are faced with their daily transactions, CISG and Incoterms being now in force, is desirable. (3) In case of use of MISC similar to a system of Incoterms, as PICC, it is necessary for MISC to set forth definitions about important terminology which is possible to give concerned parties confusion. (4) In a sense, PICC has a character complementing problems which CISG can not solve, therefore, if int'l agreement is given, it is desirable to adopt revised PICC adding specials conditions (A) of MISC as appendix of PICC such as Llouyd's Form in an appendix to MIA, as int'l convention.

• International Journal of Fuzzy Logic and Intelligent Systems
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• 제16권1호
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• pp.72-80
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• 2016

Re-auction happens when a bid winner defaults on the payment without making second in-line purchase declaration even after determining sales permission. This is a process of selling under the court's authority. Re-auctioning contract price of real estate is largely influenced by the real estate business, real estate value, and the number of bidders. This paper is designed to establish a statistical model that deals with the number of bidders participating especially in apartment re-auctioning. For these, diverse factors are taken into consideration, including ratio of minimum sales value from the point of selling to re-auctioning, number of bidders at the time of selling, investment value of the real estate, and so forth. As an attempt to consider ambiguous and vague factors, this paper presents a comparatively vague concept of real estate and bidders as trapezoid fuzzy number. Two different methods based on the least squares estimation are applied to fuzzy regression model in this paper. The first method is the estimating method applying substitution after obtaining the estimators of regression coefficients, and the other method is to estimate directly from the estimating procedure without substitution. These methods are provided in application for re-auction data, and appropriate performance measure is also provided to compare the accuracies.

• 아태비즈니스연구
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• 제13권2호
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• pp.139-154
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• 2022

Purpose - This study aims to analyzing of solar power generation cost-benefit. Design/methodology/approach - We analyzed whether there is economic feasibility by selecting parking lots and idle sites located in four areas of Seoul, Gyeonggi, Chungcheong, Jeolla, and Gyeongsang areas nationwide, and analyzing site conditions and installation capacity. Findings - According to the results of the analysis, it was found that there is low profitability in Seoul, Gyeonggi and Chungcheong regions, where the solar radiation was not excellent even if REC is selected through the contract market. However, it is necessary to analyzed the economical validity the profitable validity including environmental benefits (greenhouse gas reduction, NOx, SOx reduction effect) and social benefits (renewable power supply) that is analyzed by income and operating costs which is occurred from electricity sales and REC sales when installing solar power generation facilities. Research implications or Originality - In this study, economic feasibility was evaluated additionally in consideration of environmental and social benefits. In conclusion, it was shown that businesses are not economical when considering only simple financial aspects are also sufficiently economical when it is considering environmental and social benefits.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.135-172
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• 2004

While doing business in China foreign companies occasionally find themselves embroiled in disputes with Chinese individuals, companies or the Chinese Government. There are three primary ways to resolve a commercial dispute in China are negotiation, arbitration and litigation. The best way of dispute resolution is negotiation as it is the least expensive method and the working relationship of both parties concerned in dispute. But negotiations do not always give rise to resolution. Arbitration is the next choice. Unless the parties concerned can agree to resort to arbitration after the dispute has arisen, the underlying contract namely, sales contract or separate agreement must show that disputes will be resolved by arbitration. Agreements to arbitration specify arbitration body and governing law. There are two Chinese government -sponsored arbitration bodies for handling cases involving at least one foreign party: China International Economic and Trade Arbitration Commission(CIETAC) and China Maritime Arbitration Commission(CMAC) for maritime disputes. Contracts regarding foreign companies doing business in China often designate CIETAC arbitration. CIETAC distinguishes between two kinds of dispute resolutions, foreign-related arbitration and domestic arbitration. For a dispute to be classified as foreign-related arbitration, one of the companies must be a foreign entity without a major production facility or investment in China. CIETAC has published rules which govern the selection of a panel if the contract does not specify how the choice of arbitration will be handled. CIETAC's list of arbitrators for foreign-related disputes, from which CIETAC's arbitrators must en chosen, includes may non-Chines arbitrators. But many foreign experts believe that some aspects of CIETAC needs to be improved. The purpose of this paper is to improve the understanding of arbitration in China, CIETAC by way of studying the current situation and improvement of international commercial arbitration in China.

• 한국건설관리학회논문집
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• 제18권2호
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• pp.99-107
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• 2017

최근 들어 국내기업의 해외 엔지니어링 사업에 진출이 활발해지고 있다. 해외 엔지니어링 사업은 고부가가치 사업으로 EPC 건설사업에 비해 리스크가 적은 것으로 알려져 있지만, 국내기업의 해외 엔지니어링 매출수익은 그만큼 좋지는 않은 것으로 나타났다. 따라서, 본 연구에서는 해외엔지니어링 사업에서 많이 발생하는 리스크를 수주 전과 수주 후로 나누어서 분석하였다. 또한, 대상사업을 총액계약방식과 실비정산계약방식으로 나누어 계약방식에 따라 여러 가지 리스크의 차이점을 보여주었다. 마지막으로, 토목공종과 건축공종으로 나누어 리스크 차이를 분석하였다. 해외 엔지니어링 사업에서 발생하는 리스크를 다양한 각도로 분석한 본 연구는 산업체에게는 리스크 분석을 좀 더 실무적으로 참조할 수 있게 해주고, 학계에는 향후 좀 더 집중해서 연구해야할 엔지니어링 리스크 분야의 방향성을 제시해주는데 도움을 준다.

• 무역상무연구
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• 제25권
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• pp.41-71
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• 2005

"UNIDROIT Principles 2004" focused on an enlargement rather than a revision. An additional Section or Chapter so to speak, which are about, the Authority of a Agents, Third Party Rights, Set-off, Assignment of Rights, Transfer of Obligations and Assignment of Contracts, and Limitation Periods have been added, while the only change of substance made to the 1994 Edition, apart from two paragraphs in the Preamble, and three new provisions in Chapter 1 and 2 which are necessary to adapt the Principles to the needs of electronic contracting. The Principles which have the nature of the restatement of international uniform laws (for example CISG) are continuous exercise. Therefore we should note whether in the future our concerns would be on a additional topics on a improvement of the current text by monitoring the reception of the "UNIDROIT Principles 2004" in practice, and the application by contracting parties. The purposes of the Principles may be classified into three ; the rules of law governing the contract, means of interpreting and supplementing international uniform law or domestic law, or models for national and international legislator. Among them, the function of governing law may be applied by the express choice by the parties or by the implied choice like "general principles of law" or "les mercatoria", and it may be applied in the absence of any choice of law by the parties. Among there importance functions, this writer would like to emphasize the function to supplementing international uniform law instruments. The reason is that the CISG which has been established as an international uniform sales act and to which our country would be a contracting State from March, 2005, needs a lot of gap-filling. For this purpose it is advisable the parties to insert following provisions in their contract. "This contract shall be governed by the CISG, supplemented when necessary by the UNIDROIT Principles 2004" Thus success in practice of the UNIDROIT Principles over the last then years has surpassed the most optimistic expectations. It is hoped that the 2004 Edition of the UNIDROIT Principles will be just as favorably received by legislators, business persons, lawyers, arbitrators and judges and become even better known and more widely used throughout the World.

• 무역상무연구
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• 제67권
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• pp.23-47
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• 2015

European Commission drafted and proposed the Common European Sales Law(CESL) to the European Parliament for the realization of a uniform set of international private law rules within the EU internal market. Since its purpose is for free international commercial activities for the sale of goods, for the supply of digital content and for related services, it was proposed to enable EU Member States to adopt or supplement as their substantive law according to their options. This study is relate to the legal bases on termination of a contract under CESL, they are composed of three parts: damages and interest, restitution and prescription. Damages and interest are divided into damages, general provisions on interest on late payments, and late payment by traders. Damages are explained by dividing into right to damages, general measure of damages, foreseeability of loss, loss attributable to creditor, reduction of loss, substitute transaction, and current price. Restitution is described by dividing into restitution on revocation, payment for monetary value, payment for use and interest on money received, compensation for expenditure and equitable modification. Prescription is explained by dividing into general provisions, periods of prescription and their commencement and extension of periods of prescription. General provisions explain right subject to prescription into a right to enforce performance of an obligation and any right ancillary to such a right. Regarding period of prescription, the short one is two years and the long one is ten years. However, in the case of a right to damages for personal injuries, period of prescription for such right is thirty years. Regarding commencement, the short one begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised, while the long one begins to run from the time when the debtor has to perform. However, in the case of a right to damages, the CESL clarifies that it begins to run from the time of the act which gives rise the right.