The Liability System and the Legal Nature of the Seller's Liability for Defective Goods under Korean Law and the PELS

유럽매매법원칙과 한국법상 결함상품에 대한 매도인의 책임의 법적성격과 책임제도

This study attempts to provide a comparative overview of the liability systems Korean law and the PELS adopt, that is, the approaches taken by Korean law and the PELS to deal with various irregularities of contractual performance. In addition, it examines in a comparative way the questions of what is the position of the seller's liability for his delivery of defective goods under the chosen liability system and what is the legal nature of the seller's liability. The study finds that the dual liability system taken by Korean law has caused some complexities as to the matter of which liability is applicable in some borderline cases. The problem in such complexities is originated in that the remedies available and the limitation period applicable are differentiated in accordance with one's different categorization among three types of default under the general liability and defective performance under the seller's guarantee liability. In this light, the study argues that the unified liability system under the PELS is superior because its concept of non-performance embraces in a unitary manner all the aspects of default including defects in quality, quantity and title. In addition, it finds that Korean law has suffered endless debates on the question of what are the true contents of the same remedies of rescission and damages provided under the seller's guarantee liability as under the general liability. The debates have been come along on the basis of the traditional presumption among some of civil law jurisdictions that two liabilities be different in terms of not only their legal nature but also their contents of remedies. The study argues that the problem may be circumvented, first, by another way of thinking that the unified liability in Korean law is inferred from the specification of the identical remedies for both the general liability and the seller's guarantee liability under the KCC, second, by the preposition that the requirement of fault be depended upon what remedy the buyer seeks to claim rather than what liability he does to rely on.