• 정보학연구
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• 제7권3호
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• pp.83-98
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• 2004

본 연구는 최근 컴퓨터사용의 보편화와 정보통신기술이 발달로 급속히 진전되어 가고 있는 전자무역거래의 전분야 중에서 컴퓨터 On-Line(E-mail과 WWW 등)을 통한 전자무역계약의 성립법리과 UCC를 중심으로 한 전자무역계약의 성립요건을 살펴보고 일본법과 UNCITRAL Law, 그리고 EU지령 등을 중심으로 전자무역계약의 성립시기와 그 계약의 휴요성을 구체적으로 제시함으로써 인터넷시대에 대응한 전자무역계약성립에 대한 명확한 이론정립에 도움을 주고자함을 목적으로 한다.

• 무역학회지
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• 제44권6호
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• pp.1-21
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• 2019

In the case of a sea transport contract, the decision of the governing law, together with the choice of lex fori, shall be a legal issue in all legal disputes involving damage to the goods. In sea transport contracts, a paramount clause is often established in conjunction with the governing law clause, which can lead to conflict between these two clauses. Most B/L's back clauses contain a paramount clause that provides that the Hague Rules, Hague-Visby Rules, or foreign laws that prevail over other provisions of the terms. The Hague Rules and the Hague-Visby Rules, however, set different standards regarding the extent of the sea carrier's liability. Therefore, in the interpretation of ground conditions, it is an important question whether the Hague Rules or the Hague-Visby Rules are applied or whether each rule is applied as a law. For example, the paramount clause in the Superior Pescadores case was problematic in the interpretation of the term 'Hague Rules.' In this case, the English Court held that the expression 'Hague Rules' could be used to mean the Hague-Visby Rules, and not exclusively the Hague Rules. Therefore, the Hague-Visby Rules were applied in the judgment of this case, which suggests that this case can be a valuable precedent in future legal matters.

• 무역학회지
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• 제44권6호
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• pp.285-302
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• 2019

Good faith is difficult to define due to the facts that there is not an objective and concrete concept of good faith, and good faith in contracts for the international sale of goods is a principle that parties to the contract must act with sincerity as members of a social community. The Korean Supreme Court shall pay attention to setting the applicable standards that can be universally applied to good faith based on the self-established criteria. Through such effort, it is possible not only to realize the value of concrete validity pursued by the general clause of good faith but also to realize the value of legal stability by assuring the predictability of results when applying good faith. In the modern sense, it can be said that the arbitrary application of general rules rather than the escape and general clauses is a problematic situation in the application of good faith, but this problem can be solved by setting a reasonable standard of good faith. This paper studies good faith in the view of Korean law, international laws, and related cases in contract law. The purpose of this paper is to find the problems and solutions of the practical application of good faith by analyzing the Korean case (2009Da86000), which undermined the legal stability of good faith in Korea.

• 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.

• 무역학회지
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• 제45권5호
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• pp.117-139
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• 2020

In case of international long-term transactions, there are various risks of economic change of circumstances including skyrocketing price increase and shortage of raw material, as well as force majeure in a general sense. Nevertheless, pretty many of international long-term commercial contracts do not include the provisions of renegotiation and adaptation of the contract. In this case, possibility of renegotiation and adaptation depends mainly on the applicable law. Namely, it may be possible or not, according to choice of law. The reason is that national laws have nuances each other, and most of national courts are traditionally reluctant to accept hardship. and also, provisions of international uniform law (CISG) has ambiguity and inflexibility in relation to the problems of change of circumstances. Accordingly, this paper analyzes comparatively the doctrines and provisions related to renegotiation and adaptation of contracts of the most representative countries such as England, U.S.A., France, Germany as well as provisions CISG and soft law such as PICC. By doing so, the author makes clear which laws of instruments is more flexible or acceptable in allowing renegotiation and adaptation of long-term commercial contracts, and emphasizes on the importance of inclusion of express terms by using other alternative supplementing clauses, as a best solution for settling the problems of legal uncertainty of contract in relation to renegotiation and adaptation.

• 무역상무연구
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• 제19권
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• pp.67-93
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• 2003

The CISG approach was intended to make the remedial system clear, but produced ambiguity, and complexity. The CISG does not differentiate between main, auxiliary and participatory obligations. There is no distinction between breaches of main or breaches of auxiliary obligations, rather, a distinction is made between fundamental and other breaches of contract. Articles 25 gives the definition of fundamental breach of contract. This concept is the essential of avoidance and remedial system in the CISG. This concept, however, is ambiguous. The fact that the fundamentality of a breach of contract in many cases is the condition for an avoidance of contract, is expression of the trend of the CISG to preserve contracts, which I consider as essential in international trade. The elements which define a substantial detriment are extremely complex. It will become obvious that the relevant detriment is not a static element, but in many instances occurs only when the breach of contract continues. It should be added that it is the circumstances of each individual case which are relevant. It is to be stressed that a fundamental breach of contract must constitute also a non-fulfillment of a contractual obligation.

• 무역상무연구
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• 제69권
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• pp.85-105
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• 2016

The fact that one of the parties to the sale contract has had to pay demurrage to the shipowner under LD clauses in the charterparty does not of itself mean that he can recover that loss from his sale counter party under the sale contract: the route to such recovery is through express clauses in the sale contract itself. LD clauses in a sale contract stand free and independent of their counterparts in the relevant charterparty. LD clauses in a sale contract should be construed and applied as clauses in sale contracts, not as adjuncts to charterparties. Their interpretation should therefore be coloured not by decisions on laytime and demurrage in charterparties, but by their relationship to the contractual duties of CIF and FOB sellers and buyers. The results discussed here have implications for the drafting of LD clauses in sale contracts. If unwelcome surprises are to be avoided, it seems to advisable to start from the principle: what exactly do traders want or need in LD clauses. They need a clause which covers them against charterparty losses where those losses are the result of dealy caused by the counterparty to the sale contract. The parties to the sale contracts are well advised to prepare LD clauses concentrating on that purpose and bearing in mind the followiing questions. First, should the loading and discharge code in the sale contract appear in traders' or trade associations' standard terms and conditions or should they be left to ad hoc negotiation in contract sheets? Second, should that code be as complete as possible, covering loading or discharge periods or rates, demurrage and despatch, or is it enough for only some of those matters to be covered explicitly, leaving other matters to be governed" as per charterparty"? Third, does the introduction or incorporation of a stipulation for the giving of a notice of readiness make the start of laytime more or less predictable as between seller and buyer? Finally should a loading and discharge code in a sale contract actully be called a "laytime and demmurrage clauses"?

• 무역상무연구
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• 제62권
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• pp.55-86
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• 2014

Korea has become a member of the United Nations Convention on Contract of the International Sales of Goods (the 'CISG') effective since March 1, 2005. As, therefore, the governing law of the general terms and conditions (the 'GTC') in the Government Foreign Procurement Contract (the 'Contract') is mandatorily fixed to the Korean Law, the CISG, as an International Convention, now having an equivalent or even higher status to the Korean Law, unless expressly excluded, will be priorly applied to the Contract where a transaction occurs between its members. In this regard, this study focuses on how to find the way for the CISG to be a governing law of the GTC in order to eliminate legal uncertainties and lacks of foreseeability prevailed in the international trade. For that purpose, the legal aspects of GTC, and the Buyer's remedy for the Seller's breach of the Contract are analyzed in accordance with the comparative study between the CISG and the GTC including the relevant case studies. As a result of this study, the application of the CISG into the GTC is highly recommended in order to reflect into the Contract such features as fairly harmonized for the interest of both parties. Taking this opportunity, a GTC, amended from the existing one, or newly formed, within the perimeter of not conflicting with the provisions of the CISG, including but not limited to the Civil Law and Commercial Law, is required in order to evenly share each party's responsibilities and obligations where the breach or remedy of the Contract is, and, thus, which will ultimately contribute to an efficient conduct of the Contract.

• 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.

• 무역학회지
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• 제44권6호
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• pp.87-103
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• 2019

L/C(Letter of Credit) is a common payment term designed to prevent credit risk in international trade. However, most companies prefer T/T (Telegraphic Transfer) payment due to its time and cost efficiency. According to related statistics, more than 70% of international trade contracts are based on T/T rather than other payment terms. The time required from the export negotiation to the completion of the export transaction and collection in international trade is very long. In this process, disputes related to settlement are continuous, so caution should be exercised. Therefore, whether or not the export payment is recovered in a timely manner is the core issue of trade transactions for exporters. The purpose of this study is to identify problems that cause delayed payments during settlement by the remittance (T/T) method, which can lead to settlement risk, in order to investigate those factors which can lead to delays in payments and increased risk as well as to determine ways to prevent such factors in advance. According to empirical findings, trading experience, transaction duration, and contract contents can be important determinants in terms of payment delays. Industry uniqueness and market uncertainty were found to be in opposition to the hypothesized relationships. The results of this study will be useful for trading companies to reduce their payment risk.