• 통상정보연구
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• 제12권4호
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• pp.385-404
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• 2010

The purpose of this article is to examine the Delays of Performance under UN Convention on Contracts for the International Sale of Goods. In theory, there exist three clearly distinguishable categories of breach of contract, namely non-performance, non-conforming performance and late performance. In particular, delays of performance are the most common breach of sales contract including late delivery, late payment or late performance of any other obligation. In this regard, this article examines how parties can, through careful drafting, avoid or minimize legal problems in case of delay in performance. Especially, the export perspective focuses on the seller's interests, which require that sanctions be as lenient as possible if the seller has breached the contract but that there are prompt and adequate sanctions if the buyer has breached the contract. Furthermore, the seller should ensure that a short or medium delay in delivery will not entitle the buyer to declare the contract immediately avoided and take precautions against late payment, including delayed opening of a letter of credit.

• 무역상무연구
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• 제58권
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• pp.3-33
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• 2013

The purpose of this paper is to examine the problems in exercising buyer's right to claim damages for the breach of contract by the seller in international sales contract and to suggest reasonable counter-measures. The main contents are as follows: First, this author analyzed the principles of the seller's liability for damages in detail and examined the methods for the calculation of damages on the basis of Arts.74~77. As these articles are found to be insufficient in practical application, this author further examined the UNIDROIT Principles(2004) to confirm whether these Principles can fill the gaps of CISG or not, which turned out their gap-filling functions. Second, this author tried to find any expected problems when the buyer resorts to the right to claim damages in case of the seller's breach of contract including the estimation of damages, the burden of proof, causation, the proof of appropriateness for avoidance, the proof of buyer's obligation to mitigate the loss and so on. The reason is that these problems may cause a lot of difficulties in real business. As result, many buyers have given up their reasonable rights to claim damages so far. Finally, from the buyer's perspective, this author would like to suggest a liquidated damage clause(LD Clause) which gives the buyer to received a specified sum in case of seller's non-performance and/or a demand guarantee(or standby L/C) which guarantees buyer to secure unconditional payment independent of the underlying contract. For these purposes, the buyer should try to insert the LD Clause and/or Guarantee Clause in the contract when the buyer and the seller negotiate the sales contract. Also there are a lot of considerations and limitations in using the LD Clause and the Guarantee Clause in their real business, mainly dependent up bargain power between the seller and the buyer, for which this author promise to examine in detail in the future.

• 무역상무연구
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• 제61권
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• pp.29-55
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• 2014

Subject matter of international trade are various. They contain not only tangible assets such as goods but also intangible assets including service, technology, and capital etc. Technology, a creation of the human intellect, is important as it is the main creative power to produce goods. It can be divided into Patent, Trademark, Know-how and so on. These Technologies are protected by the national and international laws on regulations for the Intellectual Property Rights(IPR), since technology development is needed a lot of time and effort, and the owner of the technology may have crucial benefits for creating and delivering better goods and services to users and customers. Therefore, any licensee who wants to use the technology which other person(licensor) owns, he(the licensee) and the original owner(the licensor) shall make Technology Transfer Contract. Differently from the International Sales Contract in which seller provides the proprietary rights of goods for buyer, in the case of International Transfer of Technology Contract, the licensor doesn't provide proprietary rights of technologies with the licensee, on the contrary the right of using is only allowed during the contract. The purpose of this paper is to examine the main issues in International Transfer of Technology Contract. This author focused on the main obligations of both parties, namely licensor's obligation to provide the technology and licensee's obligation to pay the royalty. As every country has different local mandatory laws about Intellectual Property Rights(IPR) and these mandatory rules and laws prevails over the contract, the related rules and laws should be examined carefully by both parties in advance. Especially the rules and laws about the competition limitation in the local country of licensee and the economic union(like the EU) should be checked before contracting. In addition, the contract has much more complicate and delicate aspects than other international business contracts, so both parties should review carefully before singing the contract.

• 무역상무연구
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• 제20권
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• pp.113-127
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• 2003

In some legal systems property passes at the time of the conclusion of the contract. In other legal systems property passes at some later time such as the time at which the goods are delivered to the buyer. It was not regarded possible to unify the rule on this point nor was it regarded necessary to do so since rules are provided by this CISG for several questions linked, at least in certain legal systems, to the passing of property. Even though the CISG rules that it does not govern the passing of property in the goods sold, it does not exclude completely the effect which the contract may have on the property in the goods sold. Problems that under some domestic systems are decided by reference to the "property" concept are governed by specific provisions of the CISG. First of All, the CISG(Arts. 41 and 42) deals with seller's obligation to the buyer that the goods be free of third party claims. Moreover, Article 45 gives a buyer the right to require the seller to deliver goods that the seller wrongfully withholds. Secondly, Article 81(2) gives a seller the right to claim restitution of goods for which the buyer fails to pay. Domestic law must respect these rights as between the seller and buyer; if such rights between the parties prevail over the claims of creditors or other third parties under domestic law, domestic tribunals should give the same effect to rights established by the CISG. Thirdly, the right to sell the goods arises where there has been an unreasonable delay by the party in taking possession of them or in taking them back(Article 88).

• 한국중재학회지:중재연구
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• 제32권3호
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• pp.71-91
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• 2022

The CISG does not stipulate the subject of the burden of proof, and in the arbitral award, the buyer is liable for proof compared to the seller for nonconformity of the product. Without a unified interpretation of the burden of proof of non-contractual goods, confusion of uncertainty may increase if the parties to the sale contract have a dispute due to the trade in goods. It is an important issue to create a unified regulation on this because the courts or arbitration agencies of the Contracting States of the CISG interpret and apply the "seller's obligation to conform to the goods contract" stipulated in this Convention in various ways. In this study, in the case of international Sales of Goods there is a tendency to prefer arbitration through arbitration agencies in the dispute, so the subject of burden of proof is analyzed through arbitration cases applied by CISG as the governing law. Most international commodity trading around the world is regulated by this Convention, but according to the rigid convention regulations, it is analyzed and interpreted through cases where this convention is applied to each country's international arbitration, suggesting the need for a rigid CISG revision.

• 무역상무연구
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• 제69권
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• pp.107-126
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• 2016

The parties in International Sale of Goods including Korean Firms Should note ; The buyer must pay the price for the goods and take delivery of them as required by the contract and CISG. The obligations mentioned in Article 53 are primary obligations which are to be fulfilled in the normal performance of the contract. The buyer has to take delivery at the respective place within a reasonable period after this communication since he cannot be required to take delivery immediately. Refusing to take delivery in case of delay not constituting a ground for avoiding the contract makes no sense, since this would lead to even later delivery. The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. International sales contracts frequently prescribe that the buyer has to act in advance, that is before the seller starts the process of delivery. Such acts may be either advance payments or the procurement of securities for payment as letters of credit guarantees. On the other hand, The seller deliver the goods hand over any documents relating to them and transfer the property in the goods, as required by the contract and CISG. 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. Except where the parties have agreed otherwise, the goods do not conform with the contract unless they are fit for the purposes for which goods of the same description would ordinarily be used are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement. The buyer may declare the contract avoided if the failure by the seller to perform any of his obligations under the contract or CISG amounts to a fundamental breach of contract. The seller may declare the contract avoided if the failure by the buyer to perform any of his obligations under the contract or CISG amounts to a fundamental breach of contract.

• 무역상무연구
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• 제74권
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• pp.1-23
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• 2017

The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. Article 38 lays down a fundamental principle that requires the buyer to examine quickly the goods delivered by the seller. Article 38 (1) provides that the examination be made within as short a period as practicable in the circumstances. The goods have to be examined within as short a period as is practicable in the circumstances. The rule is based on the fundamental idea of reasonableness, meaning that the buyer must examine the goods as soon as reasonably possible. It may be said that the buyer should act reasonably fast. Article 38 (2), (3) concerns sales involving carriage of the goods, where the seller's obligation to deliver consists in handing the goods over to the first carrier for transmission to the buyer. In this case the buyer is generally able to examine the goods only after they have come to destination. Article 38 (3) takes into account the case where the buyer redirects the goods in transit or re-dispatches them to another destination. Redirection in transit occurs when the destination is changed before the goods are received by the buyer. The buyer could re-dispatch the goods without having them unloaded, or re-dispatch them through another carrier.

• 통상정보연구
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• 제14권3호
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• pp.231-251
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• 2012

본고는 국제물품매매계약에 있어 매수인의 계약위반에 따라 피해를 입은 매도인의 구제수단을 다루고 있는 CISG 제3편 제3장 제3절(제61조 내지 제65조)을 중심으로 매도인의 구제권 일반과 이행청구권, 이행을 위한 추가기간의 지정, 계약해제권 및 물품명세의 확정권에 관한 규정내용을 연구범위로 두고, 당해 조문해석과 적용에 따른 평가에 기하여, 법적 시사점과 유의점을 도출한 논문이다. 그 내용은 우선, 제61조는 매수인의 계약위반에 기한 매도인이 선택할 수 있는 구제수단을 규정하고 있고, 나머지 조항에서는 특별구제 또는 구제의 전제조건을 규정하고 있다. 본조는 매수인의 계약위반에 관하여 매도인이 선택할 수 있는 일반적인 구제방법을 다루고 있다. 본조에서 매도인은 제62조 내지 제65조에 규정된 권리를 행사할 수 있다고 규정하고는 있으나, 이는 독립적으로 그 조항들에게 법적 효력을 부여하고 있는 규정이라고는 볼 수 없다. 제62조는 매수인의 의무이행을 청구하는 권리에 대한 제한을 두고 있는데, 그 내용은 매도인이 이미 자신의 의무의 이행을 청구하는 권리와 양립되지 않는 어느 구제방법을 채택한 경우와, 매도인이 매수인에게 의무이행을 청구할 권리가 있다고 규정하고 있음에도 불구하고, 국내법에 의해 특정이행을 주문하지 않는 상황에서 매도인을 대신하여 매수인에게 특정이행을 청구할 필요가 없는 경우로 대별된다. 제63조는 매도인은 매수인으로 하여금 그 의무를 이행할 수 있도록 하기 위하여 추가기간을 지정할 수 있음을 규정하고 있고, 제64조는 매수인이 하나 또는 그 이상의 의무를 위반하는 경우와 중대한 계약위반에 기하여 매도인이 계약을 해제할 수 있는 상황을 다루고 있다. 아울러, 제65조는 매수인이 합의한 기간 내에 또는 매도인으로부터 요구를 받은 후 상당한 기간 내에 합의된 특징을 확정하지 않는 경우 발생될 수 있는 문제를 다루고 있다.

• 무역상무연구
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• 제35권
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• pp.3-38
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• 2007

As we know, D-terms which are constituted with DAF delivered the goods in a border place, DES delivered the goods on board a vessel at a vessel specified port on the buyer's side, DEQ delivered the goods on the quay on the buyer's side as the specified place, DDU and DDP delivered the good at the stipulated place at the agreed place or point, mean arrival contracts. DAF is designed mainly for railway carriage, DES and DEQ are designed mainly for vessel shipment, DDU and DDP are designed mainly for multimodal transportation. In spite of their original purpose of revision. They have in themselves many problems on notable points on application in practice. Therefore, in order to magnify their use, through revision of Incoterms, DAF is restricted to railway carriage, DES and DEQ are restricted to be used only for charter shipments. Particularly transport documents which seller should supply the buyer with under DDU and DDP are documents for ownership and possession rights to the goods loaded when executed in negotiable form like as CIF.

• 벤처창업연구
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• 제17권5호
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• pp.205-221
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• 2022

본 연구에서는 오프라인 화장품 구매경로에서 판매원의 판매설득전술이 고객의 심리적의무감, 판매원에 대한 신뢰와 재구매의도에 미치는 영향을 파악하고자 하였으며, 고객에게 지각된 서비스품질의 조절효과를 살펴보고자 한다. 이를 위해 오프라인 화장품 구매경로를 통해 제품을 구매한 적이 있는 298명의 고객을 대상으로 설문조사를 진행하여 구조방정식 모형을 통해 분석을 실시하였다. 연구의 결과로 첫째, 판매원의 설득전술 중, 감성자극 전술(H1a), 고객환심사기 전술(H1d), 개인적 호소 전술(H1e)은 고객의 심리적의 무감에 영향을 미치는 것으로 나타났으며, 감성자극 전술(H2a), 제안설득 전술(H2b), 정보제공 전술(H2c), 고객환심 전술(H2d)이 판매원에 대한 신뢰에 영향을 미치는 것으로 나타났다. 둘째, 심리적의무감은 고객의 재구매의도에 정(+)의 영향을 미치지 않는 것으로 나타났으며, 고객의 판매원에 대한 신뢰는 재구매의도에 정(+)의 영향을 미치는 것으로 나타났다. 셋째, 지각된 서비스품질은 심리적의무감과 재구매의도, 판매원에 대한 신뢰와 재구매의도 사이에서 모두 유의한 조절효과를 나타냈다. 판매설득전술에 대한 기존 선행연구들에서는 제한적으로 하위 변수를 특정하여 설득전술을 살펴본 연구가 다수였으며, 재구매의도와 같은 마케팅적 요소를 확인한 연구 역시 미비하였다. 따라서 본 연구를 토대로 확인된 실증적 연구의 결과는 향후의 진행될 연구에 판매원의 설득전술에 대한 기준이나 방향성에 도움을 줄 수 있을 것으로 예상된다. 아울러, 본 연구에서는 오프라인 화장품 매장을 관리 및 운영하는 소상공인들을 대상으로 종업원 교육 및 관리에 도움을 제공할 수 있는 시사점과, 고객에게 지각되는 서비스품질을 높이기 위해 전략적으로 수립해야하는 판매 전략에 대한 시사점을 기술하였다.