國際物品賣買契約에 있어서 危險負擔에 관한 硏究
저자
발행사항
광주 : 조선대학교 대학원, 1997
학위논문사항
학위논문(박사)-- 조선대학교 대학원 : 무역학과 1997
발행연도
1997
작성언어
한국어
주제어
DDC
382
발행국(도시)
대한민국
형태사항
162 p. : 삽도 ; 27 cm
소장기관
The International sale of goods contract is on the premise that goods transfer from a seller to a buyer and there follows a variety of risks. It is an important problem which party to burden risks and when to transfer risks in international sale of goods contract if loss or damage of goods occurred.
The sale of goods law in British Kingdom stipulates that risks are transferred by the accompanied right of possession and burdened by the possessor of goods by principle and are transferred when the right of possession about goods is handed over. However, it is possible to clarify that risks are transferred by both parties' consent separated from the right of possession because this principle is followed by discretionary rules.
According to U.S. Uniform Commercial Code, the acceptance and the rejection of the risk burden are stipulated separately through two cases : the case of giving up possessionism and breaking the contract between parties.
Article 2-509 and 2-510 in U.S. Uniform Commercial Code burdens fundamental risk burden, therefore the transfer of risk is burdened first, by a special contract between parties second, by a possessor by principle if there is no special contract, other cases, by mercantile custom or situation.
The problem and risk burden a transferred or a factor is considered depends on whether parties of sale break the contract. In addition, if loss or damage is occurred after damaged goods is taken, it is not allowed to invalidate.
It is true that rules of Vienna Convention reveal several problems based on discretionay distribution of risks. These problems are caused inevitably because Vienna Convention was formed through the process of a compromise between continental Code and the U.K. and the U.S. Code and between an advanced country and a developing country. Therefore, Korea Code is unfamiliar with the way of provisions or using terms, but it is thought that much more elaborate analysis should be tried. also, The ability of understanding the rule of risk burden on Vienna Convention cannot be raised and a substantial help on actual affairs in trade cannot be given until the study concerned about the theory of risk burden on the U.K. and U.S. Code does not end simply analysis of provisions but is arranged through the process of study and analysis of a precedent.
Vienna Convention regulates three cases classified the case on the premise of the carriage : the case of sale of goods in the middle of the carriage : the case on the non-premise of the carriage.
Vienna Convention stipulates both the time of transfer of realistic occupancy as the principle of the transferable time of risk and the possibility of disposal of a buyer as the time of transfer of risk in the case of sale of goods which is transacted regardless of real delivery. It is thought that the legislation of Vienna Convention is right because of simplicity and clearness. Reasons are followed : First, a seller is the only person who can take measures for prevention of damage Occurrence and the incident of objects while the seller occupies them. Accordingly, as long as the seller occupies them, the blunder of the seller is inferred strongly in the case of loss, damage, and theft of them. Therefore, it can decrease the dispute of parties that risks are transferred in the time of realistic occupancy transfer. Second, while objects are kept in the building or facility of a seller, the seller does not have to request goods occupied by the seller to ask to buyer intentionally because they are within the coverage of disaster insurance, so it is easy for the seller to claim insurance.
Therefore, Vienna Convention considers it the most passable and reasonable to be the time of transfer of realistic occupancy as the time of transfer of risk, so Vienna Convention connects distribution of risk to this. Such legislation of Vienna Convention is regarded as reasonable because of distributing risk by dint of the simple and definite criteria.
Regulations concerning risk burden of Vienna Convention can be exemplary because it is made after enough consideration of substantial relevant problems such as the international carriage or insurance etc.
Vienna Convention is considerably deprived of the value of the part related to risk in international sale of goods contract owing to the lack of a concrete definition about terms of mercantile transaction and there is a criticism about what a conventional draft is made to incomplete rules about international transaction, so it is reasonable to include the condition of international transaction into a code of laws for a long term improvement of international sales of goods law.
The rule of risk burden under Incoterms is first, there allow various rules in the diverse conditions of transaction, so it may be called international sales of goods law to pursuit the principle of the party autonomy in risk burden. Second, Incoterms uses a concrete principle to stipulate the problem of risk burden, namely, the condition of transaction is made up on the premise that it is reasonable for the person who occupies goods in reality to burden risk.
The rule of risk burden under incoterms which has such characteristics may be called reasonable international sale of goods law as reflecting the property and reality of modem international mercantile transaction.
However, as for this, when a seller makes a buyer satisfied with the profit on the contract theoretically, that is, it is rational that risk is transferred at the same time when shipment invoice is transferred but such solution is unpractical, so the most practical solution is that the buyer should burden risk from shipment of goods. There is an insistence that it is not the most effective on the economic aspect but also the solution causing the fewest troubles legally.
However, the time of shipment may be thought of as the case which is correspondent with the case of risk burden by concrete passing point of time, but it is looked on as unreasonable because it is not the concept including the case of risk burden both caused by realistic delivery and caused by delivery as discretionay disposal status, and because it is reasonable in the case of container delivery that risk is transferred when goods are handed over to container delivery agent as it is not the time of the shipment.
As for risk burden, it is important of the necessity of a special contract between contracting parties. So, the following two things are necessary to avoid unreasonable burden of risk in every transaction expected an intended disaster. First, it is necessary to distribute risk rationally by a special contract between parties. Second, after there is a clear mutual consent, the party who burdens risk through the mutual consent takes measures to make preparation for loss or damage as insurance
The Code of laws which has unified terms system is required in international sale of goods contract. The function of Uniform Code which stipulates the criteria fixed by law is unequal to the function of definition of criteria which party may accept spontaneously. The code devised for using internationally needs more flexibility than local provisions simply.
In international sale of goods contract the principle of risk burden does not need to be though of as fixed. That is, the principle of risk burden in international sale of goods contract.
It is natural that the principle of risk burden in international sale of goods contract always change because it will be improved as well as discovered as the principle of the times that it is thought that party will adopt rational thing surely based on the organized system of the times. Because of this reason, it should be thought rationally based on carriage, insurance, and a financial system of the present.
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