Remedies for the Seller's Delivery of Defective Goods under EC Directive in Comparison with English Law, Korean Law and CISG

EC Directive상 하자물품에 대한 매수인의 구제제도에 관한 비교연구

This is a comparative and analytical study which comprises of the analysis of the rules of the buyer's remedies where the seller delivers defective goods of four legal systems; Directive, CISG, English law and Korean law. In light of threefold main purposes of this study, it firstly attempts to describe and analyze the remedy provisions of Directive in a comparative way in order to provide legal advice to the sellers who plans to enter into English consumer markets. It shows that the two tier remedial system under Directive is not much different from the other jurisdictions, except where the right of rescission under Directive is absolute in a sense that it does not require a certain degree of seriousness of defect. Secondly, the study compares the rules of one jurisdiction with those of other jurisdictions and evaluates the rules in light of the discipline of comparative law the basic question of which is whether a solution from one jurisdiction may facilitate the systematic development and reform of another jurisdiction. It proves the followings; (1) the reluctance and uncertainty in English law of ordering specific performance based on the discretionary power does not reflect the parties' preference because the order is either uncertain or rather negative where the purchase of substitute goods elsewhere is not a satisfactory solution in many cases; (2) the position in Korean law which has no limitation on the right to require substitute goods is likely unfair in commercial sales, but justified in consumer sales; (3) the right of termination or reduction under Directive which is subject to the applicability of the right to require repair or substitute goods seems to be contrary to the consumer's preference where the defective delivery destroys the basis of trust in the quality of the seller's performance; (4) the absolute right of termination under Directive and English law seems crucial in consumer sales because they are often inferior to commercial sellers in terms of information and bargaining power; (5) the right of reduction as a self-help remedy which is absent in English law emphasizes its usefulness. Thirdly, it finds that, where CISG is deemed to fail to unify different rules on the right to require specific performance between Civil and Common law, it is attempted once again in Directive and notwithstanding their hostility to awarding the right to require specific performance in English law, Regulations 2002 expressively stipulates such right.