• 아태비즈니스연구
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• 제14권2호
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• pp.201-212
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• 2023

Purpose - Internet-based e-commerce is rapidly developing and applied, and e-commerce through Internet technology overcomes the time and space constraints of existing business exchanges and facilitates multinational transactions.At the same time, disputes over e-commerce are increasing.In order to solve these disputes, clear laws should be regulated and regulated. Design/methodology/approach - This paper first studies the development and trend of E-commerce, then studies the legal provisions of CISG, and then combines them to analyze and draw a conclusion. Findings - Since its enactment in 1980, the CISG has been one of the most influential international commercial laws to date, with 95 States parties. It is a very important international agreement and norm that helps maintain and facilitate the settlement of international trade disputes and coordination of international merchandise sales activities. However, CISG, which is most widely used in traditional trade, faces many challenges due to the nature of E-commerce, but after studying the development and trend of E-commerce and the legal provisions of E-commerce, we conclude that CISG can be applied to E-commerce. Research implications or Originality - All the international conventions are the fruit of the efforts of the people, CISG, as one of the most important unitary laws of international trade, can be said to be representative.The analysis of CISG's legal provisions should be combined with the current international e-commerce trade form, so that CISG can be reasonably applied to modern trade disputes.

• 무역상무연구
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• 제20권
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• pp.387-421
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• 2003

On the above, a comparison between preliminary draft conventions and comments by the Int'l Chamber of Commerce, contents of preliminary draft convention, problems and alternative are discussed. The conclusions are as follows thereof : The laws of MLEC and MLES made preparation for electronic era of CISG. But electronic circumstances are more changed than the time of regulation of them. Therefore the business world needs a stand-alone convention dealing broadly with the issues of contract formation in electronic commerce. At last, preliminary draft convention delivered a second round. But the base of the instrument was also MLEC and MLES. The revised preliminary draft convention is much amended beyond preliminary draft convention. At its forty-one sessions, the working group reviewed articles 1-11 of the revised preliminary draft convention presented by the secretariat. The remainder was pending until the time of its forty-two sessions. Therefore, on the base of deliberations and decisions of that sessions and them of thirty-six sessions of UNCITRAL, which will be held on comming november, the draft convention which will be prepared by the secretariate, be re-revised preliminary draft convention. According to review of working group on them, preliminary draft convention will officially be draft convention or revise by secretariate. Under these situations, my points of view on draft convention are as follows : As though e-UCP is used carring out side by side with UCP, after e-CISG making in order to adjust CISG to "on" transaction, it is very easy and prompt for business worked to use CISG with e-CISG. This will facilitate ratification of the CISG. For this case, I already presented contents of e-CISG. It is very important for the preliminary draft convention to deal specially with issues related to electronic contracting or to electronic transaction, because according to which way, its contents and scope of application will be different. But the revised draft convention is regretably compromising both them. Consequently, its contents are very confusing and we could not expect its success. If e-CISG will regulate, it is desirable that, if possible, working group has to make the general rule, and the making of useful, practical, affordable rule for electronic commerce, for example Uniform Customs and Practices for Electronic Commerce(e-UEC) in order to solve the specific practical problems, if any, which business currently faces regarding electronic contracting, has to entrust ICC. If working group want to make e-CISG, it is important not to hesitate and take a significant amount of time.

• 무역상무연구
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• 제31권
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• pp.3-25
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• 2006

This study focus on interest for arrears and filling of the gaps left in Article 78 of CISG. In the case of CISG, Article 78 provides for interest any time a payment under a contract is untimely, but does not specify a particular rate of interest or a method to determine such a rate. This issue did not cause any uncertainty under ULIS, the CISG's antecedent, since Article 83 of ULIS provided for 1%p above the official discount rate in the creditor's country. Lacking any CISG general principle as well as any indication by the very same CISG, one can only conclude that the matter must be deferred to the domestic rule of private international law. Actually, resorting to private international law is not only admissible, but expressly required by Article 7(2). In the interpretation and filling of the gaps left in Article 78, there is a considerable difference of opinion especially amongst commentators on whether the gap is a lacuna praeter legem, i.e., one being governed by, but not expressly settled in the CISG, or whether it is an issue falling outside the scope of application of the CISG, i.e. a lacuna intra legem. The protagonists of the former view lay emphasis on the overall objective of the CISG, namely to create a uniform law, whereas the supporters of the latter view refer to the legislative history of Article 78 as the dominant principle in interpreting Article 78. Some authors believe that the issue of determining the rate of interest is not dealt with by CISG and it is, therefore, governed by the applicable domestic law, which is the subsidiary law applicable to the sales contract, since "no special connecting points seem to have developed for the entitlement to interest." In the light of the relevant case law, it seems correct to conclude that the interest rate is not determined by CISG and that courts normally determine it according to their own rules of private international law. While CISG Article 78 expressly does not deal with this issue, PICC Article 7.4.9 and PECL Article 9.508, on the other hand, set forth a precise method for computing interest. Although a method like the one set by PICC may be useful and may encourage uniformity, it still cannot be used under the CISG. The PICC or PECL formula may, however, be a very good starting point in a de jure condendum analysis when a new Article 78 will be drafted, if an interest rate method will ever be embodied in the text of an international convention.

• 한국중재학회지:중재연구
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• 제27권4호
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• pp.91-113
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• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• 무역학회지
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• 제41권4호
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• pp.21-40
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• 2016

본 연구는 최근 구매주문서 발송을 조건으로 한 매도인의 승낙을 주요 이슈로 하는 CISG상 판례가 있어 이를 소개하고 심층 분석한 논문에 해당한다. 이러한 분석을 위해 CISG상 계약의 성립 관련 조항을 청약과 승낙으로 나누어 고찰하고, 특히 이 판례의 주요 이슈가 되고 있는 대응청약과 승낙의 요건 및 연착된 승낙의 인용 관련 조항을 주로 고찰하였다. 이와 더불어 판례의 분석과 CISG상 관련 조항의 분석을 통해 CISG를 준거법으로 하여 국제물품매매거래에 임하는 거래 당사자들이 유의하여야 할 실무적 시사점을 도출하였다.

• 무역상무연구
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• 제12권
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• pp.227-252
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• 1999

In this Article the writer introduces the origin and preparation of "the UNIDROIT Principles of International Commercial Contracts". In May 1994 the Governing Council of the UNIDROIT gave its formal imprimatur to the UNIDROIT Principles and recommended their widest possible distribution in practice. After brief discussion of the establishment procedure of the UNIDROIT Principles the writer discusses the legal nature of the Principles as an international restatement of contract law. The UNIDROIT Principles has more flexibility than international convention. But it has deficit in the sense of legal stability. Also the scope of application of the Principles was discussed. It can be applied only to the international commercial contracts. It includes two basic principles in it's application, i. e. "commercial contracts" and "international contracts". For the rest of the Article the writer concentrates on the contents of the Principles and the basic ideas underlying the Principles from the point of view of the comparision between the UNIDROIT Principles and "the UN Convention on the International Sale of Goods" (CISG). The UNIDROIT Principles are only restatements and the CISG is an international convention. The application of the CISG is obligatory due to its nature as an international convention. In the contrary the possibility of the application of the UNIDROIT Principles is more flexible. The UNIDROIT Principles is a more comprehensive instrument than CISG. Therefore it can be applied to all kinds of international commercial contracts. In the contrary the CISG can be applied only to international sales contract. Since CISG only deals with contracts for the sale of goods, and the scope of the UNIDROIT Principles is much wider, no overlap can occur where contracts other than sales contracts are concerned. Rather the UNIDROIT Principles can supplement the CISG and the CISG also can be criteria in interpreting the UNIDROIT Principles. As the conclusion the writer summarizes the meanings of the UNIDROIT Principles and presupposed the futur perspectives of the Principles.

• 무역상무연구
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• 제20권
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• pp.241-265
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• 2003

The purpose of this paper is to examine the customs clearance impediment and trade parties breaches of international sales contract by the impediment. Customs clearance impediment arises when (a)clearance is not permitted, (b) importation goods are confiscated, (c)clearance delay without expectation, and (d) additional excessive trade cost caused in the process of clearance. This kind of clearance impediment may cause the breach of international sales contract. And it depends on its contents of contract and causal sequence i.e. cause and effect respectively in determining who is liable for it. If one party exemptions by Article 79 CISG, next three elements must be proved. (a)The failure was due to an impediment beyond his control; (b)the impediment was reasonably unforeseeable at the time of the conclusion of the contract, and (c)the impediment was reasonably impossible to overcome. But the customs clearance impediment is not easy to prove these three elements, the party who is responsible the customs clearance may not be exemptions by Article 79 CISG. And, according to review, it is concluded that the buyer, rather than seller, is liable for the damage which is caused in the process of clearance. It is also confirmed that the seller is sometimes liable for depending on clauses of contracts i.e. quality conditions.

• 무역상무연구
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• 제38권
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• pp.3-45
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• 2008

A motive and aim of enactment of UN Convention on the Use of Electronic Communication in Int'l Contracts is based on need to eliminate legal obstacles that might arise under existing int'l trade law instruments and promote int'l electronic commercial transaction. But when it is used with related articles, 14, 15, 16, 17 for offer under CISG, one of the most successful conventions which produces substantive law for the unification of int'l trade, questions of practical importance, for example possibilities of withdrawal, revocation, rejection of offer, the extent of its criteria arise from therewith. In conclusion, a effective electronic offer has to assure easily access and confirmation of trade terms besides criteria of offer under CISG. An offer can be withdrawal, if electronic message of withdrawal has entered the offeree's server before or at the same time when the offer has reached the offeree but agreement expressly or impliedly, between the parties about type, format, email address is a prerequisited. Implied consent could be presumed through prior conduct or trade usages between the parties under CISG articles 8, 9. The term "have reached" correspond to the time which is able to retrieve the electronic message of withdrawal. But without express or implied agreement between them about electronic communication of type, format, email address, an offer can be withdrawal before or at the same time when it has entered offeree's other e-mail address and confirmed by his retrieval. In case of the revocation, electronic message of the revocation is effective before the offeree's dispatching an acceptance. A prerequisite for the revocation by electronic communication is came as the above mentioned withdrawal except for concept of a time difference for reach. In case of a rejection of offer, when a rejection by electronic communication has entered the offeror's server, an offer is ended. But a prerequisite for the rejection by electronic message is same as the above mentioned withdrawal and revocation.

• 무역상무연구
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• 제13권
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• pp.151-192
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• 2000

This study has been focused on the revisions and characteristics of the 7 non-maritime trade terms(EXW, FCA, CPT, CIP, DAF, DDU and DDP) in Incoterms 2000. Main characteristics are as follows: First, the use of different expressions intended to convey the same meaning has been avoided and the same expressions as appear CISG have been used. Second, the content of preamble in each trade terms has been shortened and definitedly. Third, if the parties are going to use variants of trade terms in Incotrems 2000, the meanings should be made clear by adding explicit wording in the contract of sale. Main revisions of the 7 trade terms are as belows: First, Incoterms 2000 has emphasized that in EXW, the seller delivers when he places the goods at the disposal of the buyer at the seller's premises or another named place(i.e. works, factory, warehouse, etc.) not cleared for export and not loaded on any collecting vehicle. Second, in FCA, delivery is completed; a) If delivery occurs at the seller's premises, the seller is responsible for loading. b) If delivery occurs at any other place, the seller is not responsible for unloading. Third, in CPT and CIP, all costs and charges relating to the goods whilst in transit until their arrival at the agreed place of destination, unloading costs and all duties, taxes and other charges as well as the costs of carrying out customs formalities payable upon import of the goods and for their transit through any country are linked with the content under the contract of carriage. Fourth, Incoterms 2000 has emphasized that in DAF, the seller delivers when the goods are placed at the disposal of the buyer on the arriving means of transport not unloaded, cleared for export, but not cleared for import at the named point and place at the frontier, but before the customs border of the adjoining country. Fifth, Incoterms 2000 has emphasized that in DDU, the seller delivers the goods to the buyer, not cleared for import(in DDP, cleared for import), and not unloaded from any arriving means of transport at the named place of destination. Sixth, if the parties do not intend to deliver the goods across the ship's rail, FCA, CPT and CIP instead of FOB, CFR and CIF should be used.