• Journal of Korea Trade
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• 제24권8호
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• pp.101-120
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• 2020

Purpose - The buyer's right to withhold performance is a useful and important self-help remedy to protect himself from the seller's breach of contract, and it is also the coercive means to induce the seller to perform his part of contract. However, the buyer's exercise of such a right often exposes himself to the risk of breaching the contract. This is generally due to his ignorance when he is entitled to the right and also uncertainties inherent in the law. Therefore, the purpose of this paper is to examine what the requirements should be fulfilled before the buyer exercises the right for the seller's actual breach of contract. Design/methodology - In order to achieve the purposes of the study, it executes a comparative study of the rules as to the requirements for the buyer's right to withhold performance for the seller's actual non-performance under the CISG and the CESL. It mainly focuses on performance due, the seller's non-performance, the buyer's readiness to perform and the requirement of notice. Findings - The main findings of this comparative study can be summarized as follows: Although the CISG has no expressive provision for the buyer's general right to withhold performance for the seller's actual non-performance, it may be inferred from the general principles the CISG underlies, synallagmatic nature of the contract. In addition, it can be drawn by analogy from relevant provisions of the CISG. On the other hand, the CESL expressively provides that the buyer has a general right to withhold performance where the seller fails to tender performance or perform the contract. Therefore, it seems that the position of CESL is rather easier and more apparent to allow the buyer to withhold performance for the seller's non-performance. Originality/value - Most of the existing studies on the right to withhold performance under the CISG have centered on the right to withhold performance for an anticipatory breach of contract. On the other hand, there have been few prior studies on the right to withhold performance for the actual nonperformance during a contractual period of performance. Therefore, this paper examined the requirements for the buyer's right to withhold performance under the CISG and the CESL in a comparative way for the seller's actual breach of obligation. In this conclusion, it may provide practical and legal considerations and implications for business people who are not certain about the right to withhold performance.

• 무역상무연구
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• 제17권
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• pp.251-293
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• 2002

The study is a comparative and analytical study which comprises of the analysis of the rules of the buyer's right to withhold performance where the seller delivers defective goods or documents of three legal systems; the CISG, English law and Korean law. The purposes underlying this study are twofold. The first is to clarify the current position as to the right of withholding performance in the event of the seller's tender of defective goods or documents in Korean law, CISG and English law so that it may assist the parties in drafting the buyer's right to withhold performance in their own contract. The second is to compare the rules of one jurisdiction with those of other jurisdictions and to evaluate the rules in light of the practical functions and benefits of the right to withhold performance and the discipline of comparative law the basic question of which is whether a solution from one jurisdiction may facilitate the systematic development and reform of another jurisdiction. It shows that each jurisdiction does not have any provision or case law specifically dealing with the buyer's right to withhold performance where the seller delivers the goods which are defective in terms of quality or quantity. The absence of such provision or case in each jurisdiction has resulted in either disputes or uncertainty. However, the study executed in light of the primary functions and benefits of the right in practice and the discipline of comparative law reveals that, first, the view in English law which is against recognizing the right may not be justified when one considers the practical importance of having the right and the position taken by the CISG as a well developed and modernized law, second, the view in Korean law which argues that the principle of specific goods dogma on which it is based is extended even to substitutable or repairable goods cannot be also justified on the ground of one's ordinary expectation and the position under the CISG and English law which imposes a contractual duty to deliver non-defective goods on the seller insofar as the buyer's payment is deemed to be made in exchange for the seller's delivery of non-defective goods and they are substitutable or repairable. Regarding the right to withhold performance in the event of the seller's tender of defective documents, the study shows that the relatively detailed rules in English law may be utilized as a guideline to fill the gap in the CISG and Korean law in terms of the practicability and appropriateness to govern documentary sales. Furthermore, it is found that the position in English law which confers on the buyer the right to withhold performance for a trivial defect in documents may be unreasonable in terms of one's need to enable justice to be done in individual cases.

• 현장농수산연구지
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• 제22권1호
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• pp.35-42
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• 2020

This study was conducted to investigate the photosystem II activities of Cercis chinensis by soil water condition. Drought stress was induced by withholding water and waterlogging treatments was immerging the pots for 15 days. Results showed that the relative activities per reaction center such as ABS/RC, TRo/RC and Dio/RC were significantly increased compared with the control group after 12 days in waterlogging treatments. Particularly, Dio/RC increased substantially under waterlogging stress, indicating that excessive energy was consumed by heat dissipation. Furthermore, the performance index on absorption basis(PI_abs) and responses to structural and functional PS II(SFI_abs) were dramatically decreased after 15 days in both the drought and waterlogging treatments, which reflects the relative reduction state of the photosystem II. These results of chlorophyll a fluorescence by OKJIP analysis show that the sensitive changes photosystem II activity. Thus, on the basis of our results that Cercis chinensis was exhibited a strong reduction of photosynthetic activity to waterlogging stress, and OKJIP parameters such as ABS/RC, DIo/RC, PI_abs and SFI_abs could be useful indicator to monitor the physiological states of Cercis chinensis under soil water condition.

• 한국산림과학회지
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• 제106권3호
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• pp.288-299
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• 2017

이 연구는 건조스트레스가 수리취의 생리적 반응에 미치는 영향을 알아보고자 수행하였으며, 건조스트레스는 25일 간의 단수처리를 통해 유도하였다. 건조스트레스가 진행됨에 따라 새벽 녘 수분포텐셜(${\Psi}_{pd}$)과 정오의 수분포텐셜(${\Psi}_{mid}$)이 모두 감소하였으며, 수분불포화도(WSD)는 약 7배 증가하였다. 특히 일중 수분포텐셜차(${\Psi}_{pd}-{\Psi}_{mid}$)는 처리 후 10일까지 0.22~0.18 MPa 범위로 큰 차이를 나타냈으나 이후에는 차이가 크게 줄어드는 경향을 보였다. 수리취는 건조스트레스 처리 후 15일부터 기공전도도와 기공증산속도의 감소가 두드러졌고, 처리 20일 이후에는 최대광합성 속도와 순양자수율 역시 큰 폭으로 감소한 반면 수분이용효율은 반대의 경향을 보였다. 이것은 기공을 통한 $CO_2$와 수분의 조절이 원활하지 못해 광합성량의 감소가 일어난 것을 의미한다. JIP 분석을 통해 단수처리 15일 이후에 기능지수($PI_{ABS}$) 및 에너지전달 효율의 감소가 두드러진 것으로 나타났으며, 광계 2의 활성이 감소한 것을 보여준다. 엽의 원형질 분리시 삼투포텐셜 ${\Psi}_o{^{tlp}}$은 -0.4 MPa, 최대포수시의 삼투포텐셜 ${\Psi}_o{^{sat}}$은 -0.35 MPa의 삼투적 적응 반응을 나타냈으며, 최대탄성계수($E_{max}$)의 탄성적 적응은 9.4 MPa로 나타나 수리취는 건조스트레스에 따라 삼투적 적응과 탄성적 적응이 모두 나타나는 것을 알 수 있었다. Vo/DW, Vt/DW와 같은 수분특성인자는 건조스트레스에 따라 증가되는 것으로 나타났다. 결과적으로 수리취는 새벽녘 엽수분포텐셜이 -0.93 MPa 이하로 저하되면 광합성 활성의 감소가 크게 나타나고, 건조스트레스에 따라 삼투적 적응과 탄성적 적응이 나타나 이것이 이 식물의 중요한 적응방법임을 알 수 있었다.