• 무역상무연구
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• 제61권
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• pp.29-55
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• 2014

Subject matter of international trade are various. They contain not only tangible assets such as goods but also intangible assets including service, technology, and capital etc. Technology, a creation of the human intellect, is important as it is the main creative power to produce goods. It can be divided into Patent, Trademark, Know-how and so on. These Technologies are protected by the national and international laws on regulations for the Intellectual Property Rights(IPR), since technology development is needed a lot of time and effort, and the owner of the technology may have crucial benefits for creating and delivering better goods and services to users and customers. Therefore, any licensee who wants to use the technology which other person(licensor) owns, he(the licensee) and the original owner(the licensor) shall make Technology Transfer Contract. Differently from the International Sales Contract in which seller provides the proprietary rights of goods for buyer, in the case of International Transfer of Technology Contract, the licensor doesn't provide proprietary rights of technologies with the licensee, on the contrary the right of using is only allowed during the contract. The purpose of this paper is to examine the main issues in International Transfer of Technology Contract. This author focused on the main obligations of both parties, namely licensor's obligation to provide the technology and licensee's obligation to pay the royalty. As every country has different local mandatory laws about Intellectual Property Rights(IPR) and these mandatory rules and laws prevails over the contract, the related rules and laws should be examined carefully by both parties in advance. Especially the rules and laws about the competition limitation in the local country of licensee and the economic union(like the EU) should be checked before contracting. In addition, the contract has much more complicate and delicate aspects than other international business contracts, so both parties should review carefully before singing the contract.

• 무역상무연구
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• 제37권
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• pp.61-85
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• 2008

Bills of lading are crucial in international sales on shipment terms since they guard buyers against loss of or damage to the goods in transit by giving them the rights against carriers. A bill of lading, as document of title, gives the buyer the right to demand physical possession of the goods from the carrier and enables the buyer who is in possession of damaged or short-delivered goods to sue the carrier. In this context the buyer in sales on CIF or CFR terms or FOB terms with additional services benefits from the bill of lading which functions as a receipt of goods and a evidence of the terms of the contract of carriage. Protection of such buyer's interests can be provided in the sale contract through appropriate express or implied terms on the seller's documentary obligations: Which transport document, a bill of lading or a sea waybill, is required? Who should be named as the consignee in the transport document and, in case of bill of lading, by whom should the bill be endorsed? What should be stated in the bill of lading for the quantity of the goods? How about a bill of lading that contains so called "unknown clause"? How many bills of lading for the entire contract goods should be tendered? Can a bill of lading stating that the goods have been shipped in apparent good order and condition also state that the goods were damaged after shipment? This paper seeks to provide answers for these particular questions.

• 무역상무연구
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• 제20권
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• pp.113-127
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• 2003

In some legal systems property passes at the time of the conclusion of the contract. In other legal systems property passes at some later time such as the time at which the goods are delivered to the buyer. It was not regarded possible to unify the rule on this point nor was it regarded necessary to do so since rules are provided by this CISG for several questions linked, at least in certain legal systems, to the passing of property. Even though the CISG rules that it does not govern the passing of property in the goods sold, it does not exclude completely the effect which the contract may have on the property in the goods sold. Problems that under some domestic systems are decided by reference to the "property" concept are governed by specific provisions of the CISG. First of All, the CISG(Arts. 41 and 42) deals with seller's obligation to the buyer that the goods be free of third party claims. Moreover, Article 45 gives a buyer the right to require the seller to deliver goods that the seller wrongfully withholds. Secondly, Article 81(2) gives a seller the right to claim restitution of goods for which the buyer fails to pay. Domestic law must respect these rights as between the seller and buyer; if such rights between the parties prevail over the claims of creditors or other third parties under domestic law, domestic tribunals should give the same effect to rights established by the CISG. Thirdly, the right to sell the goods arises where there has been an unreasonable delay by the party in taking possession of them or in taking them back(Article 88).

• 무역상무연구
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• 제77권
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• pp.1-22
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• 2018

Under CISG the places of delivery by the seller of the goods are: If the seller is not bound to deliver the goods at any other particular place and the contract of sale involves carriage of the goods, the seller has to hand the goods over to the first carrier for transmission to the buyer. However, if the contract does not involve carriage of the goods, he has to place them at the buyer's disposal at the place where, at the time of the conclusion of the contract, both the seller and the buyer knew that the goods were at, or were to be manufactured or produced. This rule applies when the contract relates to specific goods, or unidentified goods to be drawn from a specific stock or to be manufactured or produced. Finally, in ant other cases the seller has to place the goods at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract. As to time of delivery, if a date is fixed by or determinable from the contract, the seller has to deliver the goods on that date. If a period for delivery is fixed by or determinable from the contract, he has to deliver the goods on any date within that period. In this way the seller chooses the specific date of delivery within that period, while circumstances indicate otherwise that the choice is to be made by the buyer. There no such date or period, the seller has to deliver the goods within a reasonable time after the conclusion of the contract. If the seller delivers the goods before such the date or period, the buyer is entitled to take delivery or refuse to take delivery. Under these backgrounds of provisions of CISG, this study first suggests the concepts of the handing over of the goods by the seller to the carrier and the placing them at the buyer's disposal. Then it goes further to looks into exactly where and when the delivery has to occur. In these context, this study more examines what happens if there is a breach of contract by the seller in connection with the delivery. That is, if the seller delivers non-conforming goods or at wrong place; what if there is a partial delivery or a premature delivery.

• 한국중재학회지:중재연구
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• 제32권3호
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• pp.71-91
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• 2022

The CISG does not stipulate the subject of the burden of proof, and in the arbitral award, the buyer is liable for proof compared to the seller for nonconformity of the product. Without a unified interpretation of the burden of proof of non-contractual goods, confusion of uncertainty may increase if the parties to the sale contract have a dispute due to the trade in goods. It is an important issue to create a unified regulation on this because the courts or arbitration agencies of the Contracting States of the CISG interpret and apply the "seller's obligation to conform to the goods contract" stipulated in this Convention in various ways. In this study, in the case of international Sales of Goods there is a tendency to prefer arbitration through arbitration agencies in the dispute, so the subject of burden of proof is analyzed through arbitration cases applied by CISG as the governing law. Most international commodity trading around the world is regulated by this Convention, but according to the rigid convention regulations, it is analyzed and interpreted through cases where this convention is applied to each country's international arbitration, suggesting the need for a rigid CISG revision.

• 무역상무연구
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• 제12권
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• pp.133-162
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• 1999

The international sale transaction is in essence a sale of goods and presents all those commercial and legal problems in any sale of goods. As a result, A International sales contract imposes several duties on the parties : the seller must deliver the goods and transfer ownership in them, while the buyer must pay the price and take delivery of the goods. However, there are several problems which impede a active transaction between seller and buyer who have their places of business in other countries each other. Therefore, It is necessary to provide the concept on the conformity of goods in the Int'l Sale of Goods. Especially, In our consideration for the point of time when defects occurs, the existence of non-conformity of goods should be judged on the basis of time of delivery rather than time of contract. Moreover, The burden of proof about nonconformity of goods is another fact which make an international dispute between the contractual parties in an international trade. Thus, The consistency in the interpretation of law must be maintained betweened the warranty and seller's liability. In the Uniform Commercial Code and UN Convention, non-conformity of contract is made of contract liability. And in our civil and commercial law provisions of warranty should be understand as the special ones of the provisions of general non-performance of obligation liability. As a result, More concrete study of them is required because they may have a great influence especially on international trade. As a result, We should be our best in finding a helpful and systematic structure that the dualistic structure of nonperformance of obligation liability and warranty liability must be unified by studying the theories of English and American warranty and our legal system, as well as international practice and usage being used in an international trade.

• 무역상무연구
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• 제69권
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• pp.107-126
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• 2016

The parties in International Sale of Goods including Korean Firms Should note ; The buyer must pay the price for the goods and take delivery of them as required by the contract and CISG. The obligations mentioned in Article 53 are primary obligations which are to be fulfilled in the normal performance of the contract. 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. The buyer's obligation to pay the price includes taking such steps and complying with such formalities as may be required under the contract or any laws and regulations to enable payment to be made. International sales contracts frequently prescribe that the buyer has to act in advance, that is before the seller starts the process of delivery. Such acts may be either advance payments or the procurement of securities for payment as letters of credit guarantees. On the other hand, The seller deliver the goods hand over any documents relating to them and transfer the property in the goods, as required by the contract and CISG. The seller must deliver goods which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract. Except where the parties have agreed otherwise, the goods do not conform with the contract unless they are fit for the purposes for which goods of the same description would ordinarily be used are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement. The buyer may declare the contract avoided if the failure by the seller to perform any of his obligations under the contract or CISG amounts to a fundamental breach of contract. The seller may declare the contract avoided if the failure by the buyer to perform any of his obligations under the contract or CISG amounts to a fundamental breach of contract.

• 통상정보연구
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• 제12권4호
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• pp.385-404
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• 2010

The purpose of this article is to examine the Delays of Performance under UN Convention on Contracts for the International Sale of Goods. In theory, there exist three clearly distinguishable categories of breach of contract, namely non-performance, non-conforming performance and late performance. In particular, delays of performance are the most common breach of sales contract including late delivery, late payment or late performance of any other obligation. In this regard, this article examines how parties can, through careful drafting, avoid or minimize legal problems in case of delay in performance. Especially, the export perspective focuses on the seller's interests, which require that sanctions be as lenient as possible if the seller has breached the contract but that there are prompt and adequate sanctions if the buyer has breached the contract. Furthermore, the seller should ensure that a short or medium delay in delivery will not entitle the buyer to declare the contract immediately avoided and take precautions against late payment, including delayed opening of a letter of credit.

• 통상정보연구
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• 제14권3호
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• pp.231-251
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• 2012

본고는 국제물품매매계약에 있어 매수인의 계약위반에 따라 피해를 입은 매도인의 구제수단을 다루고 있는 CISG 제3편 제3장 제3절(제61조 내지 제65조)을 중심으로 매도인의 구제권 일반과 이행청구권, 이행을 위한 추가기간의 지정, 계약해제권 및 물품명세의 확정권에 관한 규정내용을 연구범위로 두고, 당해 조문해석과 적용에 따른 평가에 기하여, 법적 시사점과 유의점을 도출한 논문이다. 그 내용은 우선, 제61조는 매수인의 계약위반에 기한 매도인이 선택할 수 있는 구제수단을 규정하고 있고, 나머지 조항에서는 특별구제 또는 구제의 전제조건을 규정하고 있다. 본조는 매수인의 계약위반에 관하여 매도인이 선택할 수 있는 일반적인 구제방법을 다루고 있다. 본조에서 매도인은 제62조 내지 제65조에 규정된 권리를 행사할 수 있다고 규정하고는 있으나, 이는 독립적으로 그 조항들에게 법적 효력을 부여하고 있는 규정이라고는 볼 수 없다. 제62조는 매수인의 의무이행을 청구하는 권리에 대한 제한을 두고 있는데, 그 내용은 매도인이 이미 자신의 의무의 이행을 청구하는 권리와 양립되지 않는 어느 구제방법을 채택한 경우와, 매도인이 매수인에게 의무이행을 청구할 권리가 있다고 규정하고 있음에도 불구하고, 국내법에 의해 특정이행을 주문하지 않는 상황에서 매도인을 대신하여 매수인에게 특정이행을 청구할 필요가 없는 경우로 대별된다. 제63조는 매도인은 매수인으로 하여금 그 의무를 이행할 수 있도록 하기 위하여 추가기간을 지정할 수 있음을 규정하고 있고, 제64조는 매수인이 하나 또는 그 이상의 의무를 위반하는 경우와 중대한 계약위반에 기하여 매도인이 계약을 해제할 수 있는 상황을 다루고 있다. 아울러, 제65조는 매수인이 합의한 기간 내에 또는 매도인으로부터 요구를 받은 후 상당한 기간 내에 합의된 특징을 확정하지 않는 경우 발생될 수 있는 문제를 다루고 있다.

• 무역상무연구
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• 제42권
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• pp.163-186
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• 2009

On April 11, 1980, the "United Nations on Contracts for the International Sale of Goods" ("CISG") was prepared by the United Nations Commission on International Trade Law (UNCITRAL) and approved by a diplomatic conference in Vienna providing uniform law for international sales of goods. It took effect as of March 1, 2005, in Korea. It is set forth on the seller's remedies for breach by the buyer Section III (Art. 61 - 65) under the CISG. In this study, the focus is only on the seller's notice fixing additional final period for performance (Art. 63) and the right to avoid the contract (Art. 64), with examination on some relevant foreign arbitral awards rendered by the ICC and the CIETAC together. Article 63 provides that the seller may fix an additional period of time for reasonable length for performance by the buyer of his obligation. It was found from the above arbitral awards that the concept of 'reasonable length' should be decided on a case-by-case basis, given the specific circumstances in the case [Art. 63(1)]. It is provided that unless the seller has received a notice that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract in accordance with Article 63(2). Article 64(1) provides the means and grounds for avoidance of the contract, which can be avoided 1) when the breach of the buyer amounts to a fundamental breach of contract, or 2) when the additional period of time is fixed by the seller, unless the buyer declares that he will not perform so within the period of fixed time. As we examined in the above arbitral awards, it was held that the contract is avoided when the seller sends the final notice stating that he will avoid the contract, after the expiration of the additional period of time fixed by the seller in the ICC award. On the contrary, it was held that the contract should be deemed to be avoided exactly when the expiration of additional period noted in the avoidance notice is elapsed in the CIETAC award. Article 64(2) sets time limits for avoidance.