• 무역상무연구
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• 제13권
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• pp.235-253
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• 2000

As to the sphere of application, Article 78 CISG undoubtedly applies to interest on the purchase price. Furthermore, the provision also applies to "any other sum that is in arrears". This language has been interpreted to encompass expenses that one party had on behalf of the other as well as reimbursements when the purchase price is reduced according to Article 50 CISG. However, it is questionable whether this language also extends to claims for damages. Legal scholars seem to agree that one has a right to interest on damage claims under Article 78 if the amount in question has been liquidated vis-a-vis the other party. Whether this right to interest also applies to unliquidated sums, is controversial, however. In this study, as a result of taking into account the puspose of Article 78, we could find the fact that regardless of whether the exact amount of damages has been specified yet, the breaching party still owes compensation to the other party from the time of the breach and, accordingly, the non-breaching party should be entitled to interest payments on the loss from that time. Consequently, Article 78 applies not only to liquidated but also to unliquidated damages.

• 무역상무연구
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• 제13권
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• pp.193-213
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• 2000

The CISG has been legislated for playing roles as uniform rules which govern international sale of goods. The job of getting unification of the diverse domestic legal systems required almost half century of work. In the process of making the Convention some rules resulted from compromises of nation's relevant interests. The Convention, however, promoted both the legal certainty and harmonization in international trade in that the uniform rules suggest the appropriate resolution to the legal problems in the course of concluding a contract as well as in remedies for breach of contract. This paper focuses systematically on the scope of applicability of the CISG. The Convention deals with contracts for the international sale of goods. However, it does not apply to all kinds of the international sale of goods. The CISG confines the sphere of applicability to a certain type of sales. First of all, the CISG is limited to those contracts having been concluded between a particular group of persons, which is called a personal aspect of applicability. Secondly, the CISG covers a specific category of sales, which is called a material aspect of applicability. Thirdly, the CISG are concluded within a particular period of time, which is called a temporal aspect of applicability. Lastly, the CISG is limited to contracts falling within a given territorial sphere, which is called a territorial aspect of applicability.

• 무역상무연구
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• 제13권
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• pp.83-103
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• 2000

Through the this paper, a conclusion could be derived from CISG PICC MISC made by UNIDROIT, UNCITRAL, ICC of representative system making out a draft for uniform law, convention, trade usages. (1) In short, like most int'l sales rules applicable to commercial contracts, these rules play a supporting role, supplying answers to problems arising from transaction between the parties. (2) Though every one has in its own way a special feature, use of MISC made on the basis of actual facts which the parties are faced with their daily transactions, CISG and Incoterms being now in force, is desirable. (3) In case of use of MISC similar to a system of Incoterms, as PICC, it is necessary for MISC to set forth definitions about important terminology which is possible to give concerned parties confusion. (4) In a sense, PICC has a character complementing problems which CISG can not solve, therefore, if int'l agreement is given, it is desirable to adopt revised PICC adding specials conditions (A) of MISC as appendix of PICC such as Llouyd's Form in an appendix to MIA, as int'l convention.

• 무역상무연구
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• 제53권
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• pp.31-48
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• 2012

If see CISG's passing of risk and altered regulations first, when sales contract accompanies transport of goods and seller does not have duty to deliver goods at particular place, when deliver to the first carter to send to purchaser according to sales contract risk passes to purchaser, and when there is duty that seller must deliver goods to carter at specification place, when goods are delivered to carter at same place, risk does not pass to purchaser. Second, risk about transporting goods passes to purchaser at signing a contract. But, when there is special assessment, risk passes to purchaser when goods are delivered to carter who publish document that embody contract of carriage. Nevertheless, it is loss if seller did not notify this truth to occasion purchaser who could knew loss or damage of goods or know justly at sales contract conclusion defamation danger seller of be burdensome. Third, seller has responsibility about damage or loss as long as hide in own artificiality or forbearance after risk passes to purchaser. Regulation about risk in Incoterms 2010 was separated into 11 condition, and move time of risk differs in angle condition. It is appeared that the substance handles relatively comprehensively because compare in Incoterms 2010 although it is because it becomes if it examines regulation about deliver and passing of risk of goods setting in CISG relatively concise. Also, segments that can become posibility of analysis controversy exist.

• 무역상무연구
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• 제20권
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• pp.213-239
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• 2003

This paper intends to describe the liability regime of the air carrier under the Montreal Convention of 1999 for the international cargo, comparing to those of the existing Warsaw Convention system. Also this paper deals with main issues of the Montreal Convention which are relevant for the carrier's liability in the carriage by air of cargo. The Warsaw Convention was adopted in 1929 and modified successively in 1955, 1961, 1971, 1975, and 1999. The Montreal Convention of 1999 modernized and consolidated the Warsaw Convention and related instruments. International air carrier is liable by application of principle of strict liability as stated in the Montreal Convention : The carrier is liable for the destruction or loss of, or damage to cargo and delay during the carriage by air, and the carrier's liability is limited to a sum of 17 Special Drawing Rights per kilogramme. However, the Montreal Convention has main outstanding issues with respect to the liability of the air carrier : potential conflicts between the Montreal Convention and the Warsaw Convention, the amounts of limits of the carrier's liability, the duration of the carrier's liability, the exessive litigation, and the aviation insurance. Therefore, the conditions and limits of the carrier's liability under the Montreal Convention should be readjusted and regulated in detail.

• 무역상무연구
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• 제17권
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• pp.93-125
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• 2002

This paper aims to find a reasonable solvency margin system in non-life insurance industry and also to evaluate the appropriateness of the current solvency margin regulation system in Korea. The current solvency margin system in Korea, based on EU's solvency margin model, was introduced during the 1997 financial crisis. The solvency requirement is not based on non-life insurer's risk, but simply on written premiums. The current solvency margin for general insurance, such as fire, marine, and automobile insurance, is determined by the greater between a premium-based amount and a claim-based amount, where the premium-based solvency margin is calculated by multiplying the net written premium for the preceding year by the premium based solvency margin ratio. Also, the amount of solvency margin for long term insurance is set at 4% of the policy reserve of the long term insurance. Still, there exist many differences between the current solvency margin regulation system in Korea and EU's model. This paper focuses on the rationality of the solvency margin regulation system, and compares the current system in Korea with EU's model and the RBC(Risk Based Capital) system in U.S. and Japan. Finally, this paper suggests a more specific and reasonable solvency margin system to be developed in Korea.

• 무역상무연구
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• 제17권
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• pp.37-69
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• 2002

This study sumed up general rules for measuring damages based on SGA, UCC, CISG, PICC legislated by on the base of English decision of Hadley v. Baxendale Concluding marks as follows : (1) General rule for measuring damages is a standard rule that is developed to place the aggrieved party in as good a position as if the party in breach performed the contract. (2) Damages may also be accompanied by other remedies (3) Damages has alternative character (4) Damages give the aggrieved party full compensation (5) It is enough for the aggrieved party simply to prove the non-performance for damages (6) Occurence of harm must be reasonably certain and a direct consequence of non-performance (7) while Rule for measuring damages an UCC is concrete CISG is comprehensive. (8) Although rule of UCC and CISG for damages measurement is a similar in many aspect but there are in expression and range of damage between them. (9) the result of this study will give researchers the opportunity to develope in depth and their report of research also contribute chance to perform business their effective oversea's trade

• 무역상무연구
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• 제63권
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• pp.25-62
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• 2014

Avoidance refers to the process of terminating a contract because of a non-performance. It implies the right of the aggrieved party to refuse to accept further performance by the other side and to refuse to perform one's own counter-obligations, on a permanent basis. The 1980 U.N. Convention on the International Sale of Goods, hereinafter 'CISG', regulates in Arts. 81-84 the effects of avoidance. The primary effect is that prescribed in Art. 81.1 CISG: both parties are released from their obligations under the contract, subject to any damages which may be due. As seen, the CISG deals with the legal consequences of avoidance, including restitutionary claims. However, a closer look to CISG provisions on restitution reveals that certain matters are left open. For instance, the CISG leaves open questions such as the costs, place and time where restitution is to be made. In this particular, the Convention remains silent as to the consequences of a delayed or refused restitution or the buyer's liability when the goods are damaged or destroyed after the avoidance. In light of the above, the present article attempts to determine the extent to which the modes of restitution are regulated in the CISG and how possible gaps are to be filled.

• 무역상무연구
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• 제37권
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• pp.3-33
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• 2008

This study primarily concerns the seller's duty to deliver the goods in conformity with the contract under the United Nations Convention on International Sale of Goods(1980) in comparison with the Draft Principles of European Sales Law. It describes and analyzes the provisions of the CISG as to the seller's duty, focusing on main controversial issues among scholars in their application. It also attempts to compare the rules of the CISG with those of the Draft PESL and to evaluate them in light of the discipline of comparative law. This is for the purpose of facilitating the systematic development and reform of one jurisdiction by any solution from the other jurisdiction found by the comparative study. In addition, this study provides legal and practical advice to the contracting parties when they intends to insert the CISG or the Draft PESL in their contract as a governing law. The comparative study particularly focuses on the following aspects; first, requirements for conformity with the contract which deals with the concept of conformity with the contract, contractual requirements agreed between contractual parties, and implied requirements otherwise not agreed between contractual parties, second, the time when the goods must be in conformity with the contract, third, exclusions of the seller's duty to deliver the goods in conformity with the contract.

• 무역상무연구
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• 제35권
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• pp.125-144
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• 2007

The objective of this study is to find out whether Korean companies which are doing a lot of commercial transactions with Indian companies can consider appointing ICA as a trustworthy institution and using ICA arbitration rules as a governing arbitration rule, when a dispute between Korean companies and Indian companies occurs. Up to now, in the case of dispute with Indian companies, Korean companies are hesitant to utilize ICA as well as ICA arbitration rules as a alternative dispute resolution, owing to lack of understanding on its rules. But, it is obvious that Korean companies which come to have better knowledge on ICA and its rules may consider more positively using ICA as well as ICA arbitration rules as a dispute resolution rather than using other arbitration institutions like ICC and KCAB etc. in the case of disputes with Indian companies because ICA arbitration rules are very objective and similar to other arbitration rules like ICC rules as well as KCAB(Korean Commercial Arbitration Board) international arbitration rules which are frequently being used by Korean companies and also have other several advantages like cheaper cost of arbitration and fast track arbitration procedures. In conclusion, ICA and its rules can also be recommended as a public-trustworthy arbitration option if Korean companies want to resolve some dispute cases with Indian companies.