• The Journal of the Korea Contents Association
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• v.11 no.7
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• pp.508-518
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• 2011

In various urban renewal projects related to real estate, developer in order to conduct the business, must get real estate inside project section directly or receive the consent for project from the owners. It must be carried out by consultation. When it fails, developer, in order to get ownership, adopts 'the Right of Claim for the sale' which has forcibleness. However, because the procedure for implementation of the right of claim for the sale is not clear, conflict between stakeholders is caused and it causes extension of period. Therefore, after examining judgments and references of judicial power for administrative litigation of the Right of Claim for the sale, by researching stakeholders of the housing rebuilding project and based on the results, finding out differences of stakeholders' recognition according to their position and problems of exercising procedure of the Right of Claim for the sale, and by presenting improvement plans of the system of the Right of Claim for the sale, contributing the success of the housing rebuilding project is the purpose of it.

• 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.

• 주택과사람들
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• s.210
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• pp.102-103
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• 2007

알박기에 관해서는 새로운 입법을 통해 여러 가지 처방이 내려져 왔으나 아직도 그 해결책은 미비한 게 사실이다. 지난달 국회는 안홍준 의원등 24인의 발의로 본회의에 상정됐던 주택법의 일부 조항 개정을 통과시켰다. 그 내용은 주택법상 매도 청구권의 확대를 골자로 하고 있다. 알박기에 관한 그 간의 대처 방안을 포함해 개정 내용을 소개하고, 향후 알박기에 대한 제안에 대해 살펴보기로 한다.

• 주택과사람들
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• s.207
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• pp.102-103
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• 2007

사업 시행 시 사업 부지의 100분의 90을 차지하는 면적을 확보했지만, 그 나머지를 확보하지 못해 법적 소송으로까지 이어지는 경우가 많다. 속칭 '알박기'에 대한 법적 제재가 이뤄지고 있는 가운데, 10년 이상 토지를 보유한 자에게도 매도 청구권을 행사하도록 하는 주택법 개정안이 실시될 예정이다. '계약의 자유'라는 측면에서 속칭 '알박기'의 법적 규정 범위와 주택법 개정안의 관련 내용을 살펴보았다.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.53
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• pp.49-74
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• 2012

This study primarily concerns the seller's right to require performance under the United Nations Convention on International Sale of Goods(1980) (here-in-after the CISG). By virtue of art. 62 of the CISG, the seller may require to pay the purchase price, take delivery or perform his other obligations. The right is known as a process whereby the aggrieved seller obtains as nearly as possible the actual subject-matter of his bargain, as opposed to compensation in money for failing to obtain it. The study describes and analyzes the provisions of the CISG as to the seller's right to require performance, focusing on the questions of what the seller can require the buyer to perform, and what the restrictions of his right to require performance are. It particularly deals with main controversial issues among scholars as to whether art. 28 of the CISG is applied to the seller's action for the price and so that it opens the door domestic traditions and national preconditions that prevent judges and enforcement authorities in some contracting states, and whether the seller's to require performance is subject to the duty to mitigate loss within the meaning of art. 77 of the CISG. On the basis of the analysis, the study puts forward the author's arguments criticizing various the existing scholars' views. In addition, this study provides legal and practical advice to the contracting parties when it is expected that the CISG is applicable as the governing law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.3-33
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• 2013

The purpose of this paper is to examine the problems in exercising buyer's right to claim damages for the breach of contract by the seller in international sales contract and to suggest reasonable counter-measures. The main contents are as follows: First, this author analyzed the principles of the seller's liability for damages in detail and examined the methods for the calculation of damages on the basis of Arts.74~77. As these articles are found to be insufficient in practical application, this author further examined the UNIDROIT Principles(2004) to confirm whether these Principles can fill the gaps of CISG or not, which turned out their gap-filling functions. Second, this author tried to find any expected problems when the buyer resorts to the right to claim damages in case of the seller's breach of contract including the estimation of damages, the burden of proof, causation, the proof of appropriateness for avoidance, the proof of buyer's obligation to mitigate the loss and so on. The reason is that these problems may cause a lot of difficulties in real business. As result, many buyers have given up their reasonable rights to claim damages so far. Finally, from the buyer's perspective, this author would like to suggest a liquidated damage clause(LD Clause) which gives the buyer to received a specified sum in case of seller's non-performance and/or a demand guarantee(or standby L/C) which guarantees buyer to secure unconditional payment independent of the underlying contract. For these purposes, the buyer should try to insert the LD Clause and/or Guarantee Clause in the contract when the buyer and the seller negotiate the sales contract. Also there are a lot of considerations and limitations in using the LD Clause and the Guarantee Clause in their real business, mainly dependent up bargain power between the seller and the buyer, for which this author promise to examine in detail in the future.