국제물품매매협약(CISG)상 매수인의 검사의무와 물품부적합 통지의무 -국내외 판례와 중재판정을 중심으로- = Buyer’s Obligations to Examine Delivered Goods and Provide a Notice of Lack of Conformity under CISG -Focusing on Relevant Domestic and Foreign Decisions

다국어 초록 (Multilingual Abstract)

Article 38 of CISG directs a buyer to whom goods have been delivered to examine them or cause them to be examined. Article 38(1) specifies a general rule that the examination must occur “within as short a period as is practicable in the circumstances.” Article 38(2) provides a special rule for cases involving carriage of goods, permitting the examination to be deferred until the goods arrive at their destination. Under Article 39 of CISG, a buyer who claims that delivered goods do not conform to the contract has an obligation to give the seller notice of the lack of conformity. The provision is divided into two subsections addressing different time periods for the required notice: Article 39(1) requires that notice of lack of conformity be given within a reasonable time after the buyer has discovered or ought to have discovered the lack of conformity; Article 39(2) specifies that, in any event, the buyer must give the seller notice of the claimed lack of conformity within two years of the date on which the goods were actually handed over to the buyer, unless this time limit is inconsistent with a contractual period of guarantee. Both Articles 39(1) and 39(2) state that failure to give the requisite notice results in the buyer losing the right to rely on the lack of conformity.
Article 40 relieves the buyer from the consequences of failing to meet the requirements of above articles 38 and 39. The relief provided by Article 40 is available only if the buyer’s failure to meet its examination and/or notice obligations relates to a lack of conformity that is known to the seller, or of which the seller “could not have been unaware.” In addition, Article 44 softens-although it does not eliminate-the consequences suffered by a buyer that has failed to give the notice called for by Article 39(1). Normally, a buyer that does not comply with these notice provisions loses its remedies against the seller for the alleged lack of conformity or third party claim. Under Article 44, however, if a buyer has “a reasonable excuse” for its failure to give proper notice under Article 39(1), some of the buyer’s remedies are restored: “the buyer may reduce the price in accordance with Article 50 or claim damages, except for loss of profit…” However, other remedies that the buyer would have if it had satisfied the notice requirements are not restored, such as remedies associated with avoidance of contract.
This paper closely examines the above articles of 38, 39, 40, and 44 by focusing on relevant domestic and foreign cases and arbitral awards because those articles may oftentimes involve in a typical dispute concerning lack of conformity of the goods delivered. There are so many foreign decisions that have dealt with those articles, although there has been only one domestic case reported in which Article 39 was in issue. It is naturally expected that Korean court will have many more cases where the buyer’s duties to examine the delivered goods and to provide a notice of lack of conformity are in issue. Korean court interpreting CISG should take into account relevant foreign decisions because Article 7(1) imposes a mandate to regard the need to promote uniform application of CISG. This paper is written as an effort to provide many useful information in that regard by introducing many foreign decisions and commenting on the reported domestic decision from a critical perspective.

참고문헌 (Reference)

• 1 "서울남부지방법원 2008. 1. 10. 선고 2006가합22303 판결"
• 2 "서울고등법원 2009. 2. 12. 선고 2008나20319 판결"
• 3 사동천, "매수인의 물품부적합통지의무에 관한 비교법적 고찰 - CISG를 중심으로" 국제거래법학회 16 (16): 263-288, 2007
• 4 최준선, "로스쿨 국제거래법 - 이론과 사례" 박영사 2011
• 5 석광현, "국제물품매매협약(CISG)을 적용한 우리 판결의 소개와 검토" 2011
• 6 석광현, "국제물품매매협약(CISG)을 다룬 최초의 우리 판결, ｢법률신문｣ 제3754호(2009. 6. 15.)"
• 7 석광현, "국제물품매매협약(CISG)을 다룬 최초 우리 판결의 항소심판결, ｢법률신문｣ 제3781호 (2009. 9. 28)"
• 8 최흥섭, "국제물품매매에 관한 유엔시효협약" 7 (7): 2000
• 9 석광현, "국제물품매매계약의 법리" 박영사 2010
• 10 김인호, "국제물품매매계약에 있어서 매수인의 물품의검사기간과 부적합의 통지기간과의 관계" 법조협회 56 (56): 98-130, 2007
• 11 하삼주, "국제물품매매계약에 관한 유엔협약에서의 매수인의 물품검사 및부적합통지의 의무" 한국상사법학회 23 (23): 577-612, 2004
• 12 Honnold, John, "Uniform Law for International Sales under the 1980 United Nations Convention" Wolters Kluwer 2009
• 13 "UNCITRAL CLOUT (Case Law on UNCITRAL Texts) (www.uncitral.org/uncitral/en/case_law.html)에 수록되어 있고 본문에 인용되어 있는 수많은 국외판례 및 국제중재판정들"
• 14 신창섭, "Korea’s Joining the CISG Regime and Its Implications in Terms of Forming Legal Framework Governing International Sales Transactions in the East-Asian Region, in 이기수선생정년기념 논문집" 2010
• 15 UNCITRAL, "Digest of Case Law on the United Nations Convention on the International Sale of Goods" 2008
• 16 Harry M. Flechtner, "Conformity of Goods, Third Party Claims, and Buyer’s Notice of Breach under the United Nations Sales Convention (“CISG”), with Comments on the ‘Mussels Case,’ the ‘Stolen Automobile Case,’ and ‘Ugandan Used Shoes Case’, in University of Pittsburgh School of Law Working Paper Series" 2007
• 17 Schlechtriem, Peter, "Commentary on the UN Convention on the International Sale of Godds (CISG) 2nd ed" Oxford Univ. Press 2005
• 18 "Centre for Comparative and Foreign Law Studies, UNILEX"