공통유럽매매법안에서 위험의 이전

초록

It is very important to determine who bear the risk of the loss or damage of the goods due to no fault of either party and when the risk passes to buyer after the sale contract are concluded. Article 537 of Korean Civil Code regulate, "if the performance of an obligation of one of the parties to a bilateral contract becomes impossible by any cause for which neither of the parties is responsible, the obligor may not be entitled to counter-performance". However, Civil Code does not regulate when the risk of counter-performance passes. On Oct. 11, 2011 the European Commission propsed the regulation on a Common European Sales Law(CESL). The law is to be applicable to cross-border sales contracts, whether business-to-business (B2B) or business-to-consumer (B2C). However, On Dec. 16, 2014 the European Commission withdrew the proposal of the regulation for Common European Sales Law. The important reason for the withdrawal is “Modified proposal in order to fully unleash the potential of e-commerce in the Digital Single Market”. In spite fo withdrawal, the rules of the draft are very important for comparative study of law. This paper study the rule on the passing of risk under common european sales law. The draft of common european sales law has rules regarding the passing of the risk in Chapter 14. It distinguishes expressly between business to consumer(B2C) and business to business contracts (B2B). Article 140 and 141 of CESL regulates the general rules regarding the passing of risk and burden of risk. Article 140 has a rule of legal effect of the transfer of risk as follows: “Loss of, or damage to, the goods or the digital content after the risk has passed to the buyer does not discharge the buyer from the obligation to pay the price, unless the loss or damage is due to an act or mmission of the seller.” According to Article 141 the risk does not pass to the buyer until the goods are clearly identified as the goods that are to be supplied under the contract. Furdermore, the CESL regulates when the risk passes. Article 142 to 146 of draft of European Commission (articles 142 and 143 of amendments by European Parliament) provide the rules regarding the time of passing of risk. In a consumer sales contract, the risk passes at the time when the consumer or a third party designated by the consumer, not being the carrier, has acquired the physical possession of the goods(Article 142). In a contract between traders the risk passes when the buyer takes delivery of the goods or digital content or the documents representing the goods. In addition the CESL has the rules regarding the passing of the risk in different types of contracts (i.e. goods placed at buyer's disposal, carriage of the goods, goods sold in transit). The rules regarding the passing of risk of CESL are very important for the interpretation of Korean civil code and proposal of its amendments.

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