국제물품매매협약(CISG)의 직접적용에 관한 우리 재판례에 대한 관견

초록

United Nations Convention on Contracts for the International Sale of Goods (hereinafter “CISG”) provides that it applies to sales contracts between parties whose places of business are in different States (internationality of contracts), especially when the States are Contracting States (direct application). For direct application under Article 1(1)(a), internationality of contracts based on the location of places of business should be acknowledged with the exception of an alternative reference to habitual residence under Article 10(b), while the address or nationality of the parties has no influence. Article 1(1)(a), which provides conditions for the CISG’s direct application, excludes the application of regular rules of private international law and is considered as a special conflicts rule. Court proceedings based only on domestic Korean law or a modification of applicable law by the parties should not be readily considered as an opt-out agreement under Article 6. Each party’s intention to derogate from the CISG should be both clear and real. It is controversial whether a special authorization by each party is necessary for the opt-out agreement concluded by each party’s attorney to be valid, but the power to make the opt-out agreement is included in the scope of regular authorization. Meanwhile, the determination of the parties is a preliminary step to the decision to apply the CISG. The determination of the parties should be settled according to the applicable law designated by Article 18 of the Korean private international law act. When a party is going through rehabilitation procedures, the party itself, not its rehabilitation administrator, is to be considered for the determination of internationality. Lastly, as China is considered to have made a declaration under Article 93(1), Hong Kong should not be considered as a Contracting State.

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