• 무역학회지
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• 제41권5호
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• pp.15-39
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• 2016

본 연구는 국제무역거래의 법적 뒷받침인 상관습법을 알아보고 어떻게 상관습법이 국제무역거래에서 영향력을 행사하는지를 알아보고자 하였다. 또한 상관습법은 크게 국제 협약, 모델법, 국제규칙으로 구분됨을 밝히고 국제물품매매계약의 대표적인 국제협약인 국제물품매매계약유엔협약(일명 'CISG')과 국제상사계약에 관한 UNIDROIT 원칙(일명 'PICC 원칙')을 적용 범위와 해석 원칙에 근거하여 살펴보았다. 논의 결과, 먼저 CISG는 국제물품매매계약의 통일과 조화를 위하여 기획된 제정법이며 PICC 원칙은 국제규칙에 불과한 것으로 파악되었다. 둘째, CISG와 PICC 원칙은 모두 양당사자의 의사 합의를 존중하였으며 합의에 의해 명시적으로 배제 가능하다. 셋째, CISG는 모든 나라가 가입이나 비준한 것은 아니기 때문에 CISG 적용상 지역적 불균형이 있다. 또한 CISG 체약국이더라도 각 국가의 국내법과 연결 정도에 따라 적용상의 차이가 있다. 지금 미국의 법에서는 약인이론, 사기방지법, 구두증거배제의 원칙이 있지만 CISG는 이런 규정이 없다. PICC 원칙은 계약에 준거법으로 활용되는 것이 아니라 계약의 준거법에 보충하거나 해석 시 고려되는 원칙에 불과하지만 향후에는 소송보다는 중재가 더욱 선호되는 것임을 감안하면 중재판정부에 의한 계약의 준거법 해석에 보완하는 역할로 더욱 힘을 발휘할 것으로 판단된다.

• 디지털융복합연구
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• 제2권1호
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• pp.93-112
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• 2004

A license under UCITA(Uniform Computer Information Transactions Act) which represents the first comprehensive uniform computer information licensing law is not fundamentally rooted in intellectual property law such as patent or copyright law. A license under UCITA is simply a commercial contract, dependent wholly on the parties' ability to enter into a normal, commercial contract, just as a contract of sale or lease is simply and wholly a commercial contract. However, intellectual property rights may be licensed in a contract subject to UCITA. UCITA may not be used to vary or extend informational rights that are intellectual property rights, and expressly recognizes preemption by copyright, patent, or other federal intellectual property law in Section 105(b). Like the law of sales and leases, in general, the right to contract is constrained by principles of unconscionability, good faith and fair dealing, UCITA has an additional restraint, an express power for a court to deny enforcement of a provision in a licensing contract that violates fundamental public policy. This public policy defense is unique in UCITA. An essential purpose of this defense is to give courts some latitude in reconciling commercial licensing law with the principles of intellectual property law. Most intellectual property law is federal, and UCITA expressly recognizes the preemptive effect of that federal law. But the public policy defense gives courts an additional power to consider intellectual property principles purely within the context commercial law.

• 무역학회지
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• 제45권1호
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• pp.221-239
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• 2020

Among various export contracts, the contents of contracts are very important. Various companies make use of this method. [Which method are you talking about?] However, the Korean law system has an insufficient understanding of the international legal system. This paper looks into the conditions related to contracts in relation to the legal system. This paper analyzes not only the Korean civil law system about illegality of contracts but also makes a comparison with other international systems, such as the UNIDROIT Principles. Especially, the Korean civil law system about the illegality of contracts is comparable with the UNIDROIT Principles system about illegality of contracts. The purpose of this paper is to examine the revitalization of Illegality of Contract. This paper also deals with improvement of International Commercial Activation. Thus, this paper will offer directions to International Trade Practitioners. There is disagreement regarding methods of action related to international trade practice. Especially, this study is good for commercial parties, especially overseas sales people.

• 무역상무연구
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• 제17권
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• pp.71-91
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• 2002

The purpose of this paper is to examine the viewpoints of the different legal systems for the validity of LD Clause and the possibility of gap-filling function of UNIDROIT Principles in International Sales Contract. The results of comparative study between common law system and civil law system, and between CISG and UNCDROIT Principles is as follows: First, common law system distinguishes LD Clause and Penalty Clause, but civil law system including Korean law does not strictly distinguish the difference between them, provided that the liquidated damages are not grossly excessive. Second, CISG does not concerned with the validity of LD Clause but entrust this matter to the law applicable by virtue of the rules of private international law; conversely the Principles follow similar position of civil law system. The possibility of gap-filling of the Principles is more positive in the case of arbitration than in the case of litigation. On the basis of above study, I also checked the LD Clauses of ICC Model International Sales and the Model Contracts of Korean Commercial Arbitration Board. The LD Clauses of there two Model Contract seem very appropriate and reasonable for the reference in practical application. The appropriate, not excessive, LD Clause will contribute not only to eliminate the burden of proof for the actual damages, but also to enforce both parties to perform their obligations in their contracts. Therefore, When we make contract, we should keep in our mind to insert the reasonable and appropriate LD Clause in the sales contract. If not, so to speak, litigated damages are grossly excessive, the Clause may be invalid in some legal system.

• 한국산업보건학회지
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• 제31권4호
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• pp.417-426
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• 2021

Objectives: The purpose of the Act is to comprehensively consider the legislative notice of the Enforcement Decree of the Serious Accidents Punishment Act for each important issue in terms of system, content, and execution. Methods: We examine the legislative notice of the Enforcement Decree of the Serious Accidents Punishment Act in-depth from the perspective of the effectiveness of disaster prevention, consistency of the legal system, and harmony with legal principles. Results: The proposed Enforcement Decree of the Act on the Punishment of Serious Accidents hardly resolves the uncertainties of the law, and there are many aspects that are unclear in the enforcement ordinance itself and that do not comply with constitutional principles. As a result, it is judged that it is difficult to for it to serve as an accident prevention standard due to its low predictability and that it will be difficult to achieve effectiveness in accident prevention. Conclusions: Ultimately, the law itself should be extensively reorganized in order to ensure universal and sufficient effectiveness, including the abolition of the Serious Accidents Punishment Act. In the short term, even the Enforcement Decree of the Act should be reorganized and supplemented in accordance with the law and safety principles.

• 무역상무연구
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• 제69권
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• pp.153-178
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• 2016

The United Nations Convention on the International Sale of Goods(CISG) leaves a number of aspects concerning commercial sales untouched. In particular, it is not concerned with the validity of the contract or of any of its provisions or of any usage. And UNIDROIT don't deal with all-round validity in International Commercial Contract. Especially, UNIDROIT includes declaration of intention department. The UNIDROIT contains the chapter 3 on the "validity" in terms of the defects of consent such as mistake, fraud, and threat as well as "gross disparity". Notwithstanding these provisions, the Principles did not deal with invalidity arising from the lack of capacity or authority, or immorality or illegality. On the other hand, there are arguments that the corresponding provisions of the Principles of International Commercial Contracts(UNIDROIT Principles; PICC). Therefore, Validity in International Commercial Contract is delegate by Each Country Law. So Trade practicer should know full well about Each Country Law Position. People(human, corporation, company) of position Trade practice classify each country civil law relation to validity of commercial contract. This paper is to examine the Validity of UNIDROIT Principles. Also this paper analyses comparison on each country position relation to capacity of right, capacity to act, illegality of contract, declaration of intention. In conclusion, This paper expect that people of trade practice makes use of analysis knowledge.

• 무역상무연구
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• 제45권
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• pp.51-82
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• 2010

The "rules of private international law" or "conflict of law rules" work to determine the governing law, the law applicable to international contracts. These rules permit parties' autonomy to choose the law applicable to their contracts in cases of both litigations and arbitrations. In this regards, the present article examines parties' five options for the choice of the law governing their contracts, which the parties should consider when negotiating and drafting an international agreement. This means that parties in international contracting should check the contents of the law that they are to choose as the governing law before doing so. The first option is to submit the contract to its own law, which can be the safest and simplest solution generally. However this option is subject to the consent of the other party, and is not appropriate when the domestic law chosen contains mandatory rules strongly protecting the other party. Secondly, the option of choosing the other party's law is not preferable in general. Even though the other party is strong enough to succeed in insisting on applying its own law, the other party is advised to counter-offer a neutral solution by suggesting the application of a transnational set of rules and principles of international contract, such as Unidroit Principles. The third option to choose the law of a third country should be taken with the caution that it should be harmonized with either, in case of litigations, the international jurisdiction clause which makes the country chosen have the jurisdiction over the dispute arising under the contract, or, in case of arbitrations, the way of selection of the arbitrator who has good knowledge of the law chosen. The fourth option of submitting the contract to the lex mercatoria or the general principles of law including the Unidroit Principles can be a advisable solution when a dispute is designed to be submitted to experienced arbitrators. The final and fifth is to be silent on the choice of the governing law in contracting. This option can be usefully available by experienced negotiators who are well familiar with the conflict of laws rules and enables the parties to avoid the difficulties to agree on the governing law issue and leave it open until a dispute arises.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

• 무역상무연구
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• 제74권
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• pp.25-54
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• 2017

Among various export financing, Assignment of Receivables is very important. Various countries make use of this method. But Korean law system had shortage of International legal system. This paper looks into Opposing Rights on Assignment of Receivables relation to legal system. And this paper analyze not only detail Korean civil law system about Opposing rights on Assignment of Receivables but also comparative other International system. There are UNIDROIT Principles and United Nations Convention on the Assignment of Receivables in International Trade. Especially, Korean civil law system of Opposing rights on Assignment of Receivables compares UNIDROIT Principles system of Opposing Rights on Assignment of Receivables or United Nations Convention on the Assignment of Receivables in International Trade of Opposing Rights on Assignment of Receivables. In the context, This paper compares Korean civil law system about Assignment of Receivables with International standard rule about Assignment of Receivables. This is good for the commercial practice party in terms of financing and receivable assignment. Thus this paper will make direction to International Trade Practicer. There are argument on method of having an action or manual about international trade practice. The purposes of this are to examine revitalizing on Assignment of Receivables. And this paper deals with improvement of International Commercial Activation.

• 무역상무연구
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• 제29권
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• pp.39-61
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• 2006

The governing law in international commercial arbitration may be divided into governing arbitration law and governing substantive law. The former governs the parties' arbitration agreement and the conduct of any subsequent arbitration. But the later governs the parties' substantive rights and obligations, which means the law that governs contract formation and performance, and the law to be applied by the arbitrator to the merits of the dispute. The purpose of this paper is to examine how to determine the substantive governing law when there is express choice or implied choice between parties. Moreover this author checked any restrictions on party autonomy and also any possibilities to deviate from the governing law. In case of express choice the sources of the law or rules of law might be the national law of one of the parties, the neutral law, the general principles of law or lex mercatoria according to the arbitration law selected by the arbitral tribunal. Some arbitration laws or rules empower the arbitrator to decide the case ex aequo et bono or to act as amiable compositions. If the governing law could be determined expressly or impliedly by the parties, the arbitral tribunal would make a selection. In this case the criteria for selecting a governing law are not exactly same from country to country. But failing any indication by the parties as to governing law, the arbitral tribunal should apply the rules of law, the law or the law under the rule of conflict that the arbitrators consider applicable, according to the governing arbitration law. Among the connecting factors offered by the conflict rules, (which means the factors that the arbitrators consider applicable), some legal systems give precedence to the formation of the contract, other system to the place of performance of the contract, and others to the closest connection or centre of gravity. But the Rome Convention, which unified the conflict rules of the contracting states, gives precedence to the law of the domicile of the party which has to effect the performance which is characteristic of the contract. Finally this author suggested the Choice of Law Clause which covers governing substantive law and governing arbitration law at the same time. Thus the UNIDROIT Principles as well as any national law may be included as a governing law in international arbitration. So when we make sales or service contract, we should take into consideration of the UNIDROIT Principles as a governing law or a supplement to the governing law.