國際物品賣買契約에 있어서 賣渡人의 物品의 瑕疵擔保責任에 대한 考察 : UN Convention on Contracts for the International Sale of Goods 1980를 中心으로 = "A Study on the Seller's Obligations about the Defects of Goods in International Sales of Goods"

다국어 초록 (Multilingual Abstract)

United Nations Convention on Contracts for the International Sale of Goods 1980 (hereinafter referred to as "Convention") has been unamiously approved by a diplomatic conference of sixty-two States held in Vienna on April 11, 1980. There is basis for hope that the. Convention, culminating the work of half a century, has escaped the lethargy and divisiveness that plague international legal work and will provide a widely-accepted legal basis for international trade.
The Convention does not override domestic rule that outlaws certain transactions and invalidates proscribed contracts; outside this narrow area the Convention gives firm protection to the contractual arrangements made by the parties. In short, like most deomestic sales rules applicable to commercial transactions, the Convention's rules play a supporting role, supplying answers to problems that the parties have failed to solve by contract.
The scope of the Convention is limited to the international sales; it governs contracts "between parties whose place of business are in differnet States(Art.1)" and excludes the domestic sales.
This article is to seek for a preventive for losses resulting from the seller's obliagations regarding the defects of goods by cross-examining the relevant rules of the Convention, the (U.K.) Sale of Goods Act 1893 (hereinafter referred to as "SGA" as amended 1979) and the (U.S.A.) Uniform Commercial Code 1952 (hereinafter referred to as "UCC" as amended 1978).
Most sales controversies grow out of disputes over whether the goods conform to the contract. In many cases these disputes present only a question of fact. What was the condition of the goods? Disputes over quality, however, connot always be resolved simply by measuring the goods against the specific terms of contract.
As to the seller's obligations respecting the defects of goods, the Convention presents a unified approach. (Art.35). Paragraph (1) of Art.35 emphasizes a point that could go without saying: the parties must comply with their contracts. In other words, the seller must supply the buyer with the goods conforming to the contract. The conformity of the goods with the contract will include the quality and presumed implications; description, ordinary purpose, fitness for particular purpose, goods held out as sample or model, and packaging.
Since the role of rule about quality is to construe the contract, there is an intimate relationship between what the parties say and the understanding that are implicit-or "implied." SGA, in general, leaves the parties' express statements to the general law of contracts but in Section 14 establishes implied "conditions" and "warranties" about quality and fitness. SGA Sections 13 and 15 in many cases applies to express contractual provisions. In United States law (UCC), the seller's obligations about quality are referred to as "warranties", and are dealt with under three headings:(1) "express warranties" (UCC2-313); (2) an implied warranty of merchantable quality (UCC 2-314); and (3) an implied warranty of fitness for a particular purpose (UCC 2-315). Germany (F.R.G.) Civil Code (Buegerliches Gesetzbuch:hereinafter referred to as "BGB") uses different concept:Beschaffenheit(BGB S.459(1))
As we have already observed, the legal ideas of "defects: of goods are different from States to States and this must lead to various interpretation of the defects by States. This fact is called as "confict of laws". The problems concerning the confict of laws are divided into two categories: The one grows out of the law of contract and the other the law of property. The majority of problems arise out of the former and are generally determined by the "proper law ' of contract.
The contract may or may not provide what the proper law shall be. Where it does not so provide, either expressly or by influence in all the circumstances, the proper law is "the system of law by reference to which the contract was made or that with which the transaction has the closest and most real connection". In determining which system of law whis is, it is necessary to consider the terms of the contract, the situation of the parties, and generally all the surrounding facts. These will include where the contract was made, where it is to be performed, the nature and situation of the subject matter, the language in which it is written, the system of law to which any legal terms used belong, the currency in which any payments are to be made, and the selection of artibtration from some particular country. Among all the surrounding facts we are most greatly related with the language in which it is written, the system of law to which any legal terms used belong and the currency in which any payments are to be made.
It is presently an evident fact that the majority of international sales contracts are written in English, and all relevant exprot documents are made in English, and that our payments and international payments are vastly settled in U.S. Dollar currency, U.K. Pound Sterling and German Marks currencies.
It has now become a general custom that we shall not adopt one party's laws or rules as the "proper law' of sales contract. We have faced much difficulties in deciding the "proper law' because of mutual interests. Accodringly, it is most recommended that the Convention shall be adopted as the "proper law' to secure mutual benefits. In interpreting the Convention there shall be regard for two closely-related principles-(a) its "international character" and (b) "the need to promote uniformity in its application." And there shall be also regard to for promoting the observance of good faith in international trade." (Art. 7)
As we have observed, the rules about the seller's obligations regarding the defects of goods are not universally uniform in evey respect and are showing various concepts. We sincerely hope that the Convention's rules shall play a key role in our interpretation of the defects of goods and that they also play a supporting role, giving answers to problems which the contracts have failed to slove.
The Convention's rules about the defects of goods are illustrated by the borrowing of the work embodied in the German code(BGB) and the widespread acceptance of common law ideas, incuding those embodied in the SGA and UCC.
Under these circumstances it is essential that we should make the best use of the relevant rules of the defects of goods regulated by SGA and UCC in terms of the validity, construction and discharge of the sales contrcat when the Convention's rules are adopted as the "proper law " of the contract.
In addition to the Convention and the statutues relevant to the sales of goods, we must also pay our greatest attention to the modern laws of "product liability" which are to protect the consumers all over the world.

목차 (Table of Contents)

• Ⅰ. 序言
• Ⅱ. 物品瑕疵의 範圍
• Ⅲ. 契約解釋의 準據法
• Ⅳ. 英·美法의 瑕疵단保責任의 內容
• Ⅴ. 國際物品賣買契約에 관한 UN協約의 瑕疵단保責任의 內容
• Ⅵ. 買受人의 救濟方法
• Ⅶ. 結言