• 주택과사람들
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• s.215
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• pp.90-91
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• 2008

건축주와 설계 사무소가 건축 설계 용역 계약을 체결하고 일을 진행하다가 계약이 해제된 경우 건축주는 계약이 해제됐음에도 불구하고 설계도를 계속해서 사용할 수 있을까? 최근 건축 설계도의 저작권 침해 여부와 이용권에 대한 여러 가지 문제가 제기되고 있다. 설계 도면의 저작권 문제와 관련된 몇 가지 사항에 대해 살펴보았다.

• Vending industry
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• v.7 no.1 s.19
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• pp.42-48
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• 2007

한국자동판매기공업협회(이하:협회)와 공정거래위원회(이하:공정위)는 그간 자판기 부실판매 방지와 건전한 거래질서 확립을 통해 자판기 유통관행을 선진화시키기 위해 새로운 약관개정안 마련작업을 진행해 왔다. 상호간의 세부내용 절충을 거쳐 심사청구된 자판기매매 표준약관 개정안이 공정거래위원회 의결을 거쳐 올 1월초 공식 확정되었다. 새롭게 마련된 표준약관은 자판기 부실판매를 최소화할 수 있도록 계약해제 요건을 구체화했다. 또한 3개월 이내 합리적으로 자판기 계약을 해제할 수 있는 임의해제권을 설정했다. 파격적이라 할수 있는 임의해제권까지 부여하며 소비자의 권리는 강화하되, 계약해제의 남발을 막을 수 있게 적지 않은 해제손율이 책정되었다. 과연 이번 표준약관의 개정이 자판기 유통시장 선진화의 계기를 마련 할 수 있을까. 새롭게 마련된 자판기 표준약관의 세부 내용을 살펴보고, 자판기 유통시장에 미칠 영향들을 집중 분석해 봤다.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.47-73
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• 2015

This study primarily concerns the fundamental breach of contract by a seller and a buyer's two remedies that are entitled to under the CISG. Regarding the breach of contract, the CISG simply provides a list of each party's obligations and regulates that both parties should fulfill the obligations under the contract as well as the Convention. When the CISG specifies the remedies for both parties, it requires to divide the fundamental breach of contract from breach of contract. By doing so, it provides different remedies to both parties depending on whether it is the fundamental breach of contract or not. From the point of buyer's view, the buyer has two remedies when there is the fundamental breach of contract by the seller; they are the right to declare the avoidance of contract and to require the delivery of substitute goods. The fundamental breach of contract is a pre-requisite condition to be fulfilled in order to exercise these two remedies. Although the CISG provides the definition of fundamental breach of contract, its meaning is not clear enough, so it is interpreted and applied case by case. Therefore, this paper will analyze recent cases focusing on the most debated issues regarding the interpretation of fundamental breach of contract; first, who determines the substantial deprivation and when is the time for determination, second, when is the time for unpredictability of substantial deprivation, and last, who has a burden of proof.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.95-124
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• 2012

Referring to Buyer's obligations, the Buyer must pay the price for the goods and take delivery of them as required by the contract. There are vital importances to the Buyer's Fundamental Breach. The legal effects of a breach of contract do not depend on the nature of the obligation broken, but on the consequences of the breach the detriment to the other party. The obligations mentioned to Article 53 are primary obligations which are to be fulfilled in the normal performance of the contract. They include a number of different acts which could be seen as the subject-matter of different obligations. CISG gives further details for the payment of the price in Articles 54 to 59 and for taking delivery in Article 60. The buyer has to take delivery at the respective place within a reasonable period after this communication since he cannot be required to take delivery immediately. Refusing to take delivery in case of delay not constituting a ground for avoiding the contract makes no sense, since this would lead to even later delivery. For the understanding of Buyer's Fundamental Breach, We need to search the Cases referring to the breach of buyer's main obligations.

• International Commerce and Information Review
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• v.13 no.3
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• pp.459-485
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• 2011

This paper examines the seller's obligation to deliver documents conforming to the terms of the sales contract as set forth in articles 30 and 34 of the CISG. Article 30 obliges the seller to band over documents relating to the goods. This obligation to band over documents is further elaborated in article 34. According to article 34, the documents must be tendered at the time and place, and in the form, required by the contract. If the seller has delivered non-conforming documents before the agreed time, he has the right to remedy the defects if this would not cause the buyer unreasonable inconvenience or expense. However, the buyer can claim any damages suffered despite the seller's remedy. Specific emphasis is placed on the interplay between the CISG and Incoterms. Incoterms contain detailed rules governing the obligations of the seller to provide for documents. Incoterms constitute international trade usage under articles 9(1) and 9(2) CISG and supplement construction of CISG with UCP under L/C transaction. In the event of failure by seller to deliver the necessary documents, the buyer has certain remedies available, such as the right to claim damages, the right to demand specific performance, and the right to repair. Furthermore, the failure to deliver the required documents under contract constitute a fundamental breach of the underlying sales contract as defined by article 25 of the CISG by the seller, and thereby enable the buyer to avoid the contract entirely article 49. However, it is stressed that since one of the main principles of the CISG is the preservation of the contract, the avoidance of the contract should remain a remedy of last resort.

• Korea Trade Review
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• v.43 no.4
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• pp.27-50
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• 2018

This study focuses on the judgement of Seoul High Court' regarding the formation and performance of contracts applying the CISG. The purpose of this study is to provide legal understanding to contracting parties involved in contract for the international sale of goods that can be considered in raising the understanding of the CISG within the scope of the subject. This study aimed at the legal validity of judgments, the defects in reason for judgments and legal standards that could be established. The main contribution of this study is summarizing the facts of judgments and arguments of the parties and furthermore, in accordance with the order, the judgment order of the court and the decision criteria of the application law, the CISG articles comment and interpretation on the formation of the contract, legal bases of fundamental breach of contract, termination of contract, concurrent fulfillment and other supplementary matters and so on.

• Korea Trade Review
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• v.41 no.5
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• pp.187-211
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• 2016

This study discusses the right of suspension of performance against anticipatory breach under SGA. Anticipatory breach originated in Hochster v De La Tour allows the innocent party to exercise immediately the right or rights reserved for the non-performance of obligations. But it has not been codified in English Law. Instead, under SGA s. 41 and s. 44, the seller may suspend his performance against the buyer' anticipatory breach. Lien under s. 41 and stoppage in transit under s. 44 are given only to the seller in a narrowly-defined situation. Under SGA s. 41, the unpaid seller is entitled to retain possession of goods where the buyer becomes insolvent. But under SGA s. 43, the unpaid seller loses the right of lien when he delivers goods to a carrier or other bailee or custodian for the purpose of transmission to the buyer without reserving the right of disposal, or when the buyer or his agent lawfully obtains possession of the goods, or by waiver of lien. Under SGA s. 44, the unpaid seller may exercise the right of stoppage in transit if the buyer becomes insolvent, despite the fact that the property of goods has passed or a bill of lading has been transferred to the buyer. But, under s. 45, the right of stoppage in transit is ended when the buyer or his agent takes delivery of goods. And where the buyer transfers a bill of lading to a sub-buyer, the unpaid seller loses his right to stop goods in transit.

• International Commerce and Information Review
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• v.14 no.3
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• pp.231-251
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• 2012

The remedies available to a seller that has suffered a breach of contract by the buyer are addressed in Section III of Chapter III of Part III. The first provision in the section, 61, catalogues those remedies and authorizes an aggrieved seller to resort to them. The remaining provisions of the section address particular remedies or prerequisites to remedies. The subject matter of the current section remedies for breach of contract by the buyer obviously parallels that of Section III of Chapter II of Part III remedies for breach of contract by the seller. Many individual provisions within these sections form matched pairs. Thus 61, which catalogs the seller's remedies, which catalogs the buyer's remedies. Other provisions in the current section that have analogues in the section on buyer's remedies include 62, seller's right to require buyer's performance 63, seller's right to fix an additional period for buyer to perform and 64, seller right to avoid the contract. As was the case with the provisions on buyers' remedies, the articles governing sellers' remedies operate in conjunction with a variety of provisions outside the current section. Thus the seller's right to require performance by the buyer is subject to the rule in 28 relieving a court from the obligation to order specific performance in circumstances in which it would not do so under its own law. The authorization in 61 for a seller to claim damages for a buyer's breach operates in connection with 74-76, which specify how damages are to be measured. 49, stating when an aggrieved seller can avoid the contract, is part of a network of provisions that address avoidance, including the definition of fundamental breach, the requirement of notice of avoidance, provisions governing avoidance in certain special circumstances, measures of damages available only if the contract has been avoided and the provisions of Section V of Part III, Chapter V on effects of avoidance.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.95-118
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• 2015

This study examines the Buyer's Remedies in respect of Defects in Title under SGA. As SGA divides contractual terms into a condition and a warranty, its effects regarding a breach of a condition or a warranty are different. Where a stipulation in a contract of sale is a condition, its breach may give rise to a right to treat the contract as repudiated and to claim damages. Where there is a breach of a warranty in a contract of sale, the aggrieved party may have a right to claim damages. Regarding a breach of a condition under SGA s 12(1), although the buyer may have his right to terminate the contract, he may lose that right when he accept or is deemed to have accept the goods by intimating his acceptance to the seller, acting inconsistently with the ownership of the seller, or retaining the goods beyond a reasonable time without rejecting them. Furthermore, the buyer may claim the estimated loss directly and naturally resulting from seller's breach. SGA contains the principle of full compensation and so the suffered loss and the loss of profit are compensable. As to specific performance under SGA, the court has been empowered to make an order of specific performance to deliver the goods in conformity with the terms of the contract and so it is not a buyer's right. This order should be made only where the goods to be delivered are specific or ascertained goods and the court must think fit to grant the order. However, among these remedies, the buyer cannot have the right to terminate the contract where there is a breach of warranty by the seller under SGA s 12(2).

• International Commerce and Information Review
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• v.16 no.3
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• pp.159-182
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• 2014

CISG Article 71 (1) states that a party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will net perform a substantial part of his obligations as a result of a serious deficiency in his ability to perform or in his creditworthiness or his conduct in preparing to perform or in perfoming the contract. CISG Article 71 (2) states a 'right of stoppage in transit' that if the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. Under the right of stoppage in transit, the carrier copes with risks that the seller may claim damages arose from the handing over the goods, if he hand over the goods to the buyer and that the buyer may claim damages, if he deny handing over the goods to the buyer who has the document which entitles him to obtain the goods. Therefore the legal position of the carrier may become weak. This paper purpose to point out the legal weakness of the carrier under the right of stoppage in transit and to provide the proper legal act of the carrier and possible practice related to various characters of the contract of sale of the goods. Although there is the opinion it prevent from handing over the goods to the buyer actually under the interpretation that the buyer should take claim damages to the seller, if the goods are handed over to the buyer under the right of stoppage in transit, it is not appropriate because the opinion may disable the right of stoppage in transit. The right of stoppage in transit could be carried out under any payment conditions except letter of credit and under any mode of transportation except the cases that carrier is the buyer himself or the agent of the buyer. It could be executed regardless the forms of the transport document.