국제상거래법 체제상 하자담보책임에 관한 비교 연구

This study is intended to discuss the controversial issue of the defect liability under the legal system of international commercial transactions. The defect liability is one of the classic topics of sales law. It is also one of the main preoccupations of the parties in international business transactions. The practical needs of international transactions differ from the established concepts of national contracts law. The purpose of this paper is to analyze the legal system and theories under the regimes of international commercial transactions such as the CISG, the PICC, and the PECL. The provisions in the CISG on the conformity of goods to the sales contract are included in Article 35. Unlike the CISG, the PICC and the PECL cover not only sales contracts, but also other types of contracts. In PICC, non-performance is defined as a failure by a party to perform any of its obligations under the contract, including defective performance or late performance. The same approach is taken in PECL. Although the PICC and the PECL do not have any rules which directly resemble CISG Article 35, several articles may be used to interpret or supplement the said article. According to Article 35(1) of the CISG, the seller must deliver goods which are of the quantity,quality and description required by the contract and which are contained or packaged in the manner required by the contract. Article 5.1.6 of the PICC provides that is where the quality of performance is neither fixed by, nor determinable from, the contract a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances. Korean law in regard to the defect liability differs from CISG, PICC, and PECL. It is time when we should amend its legal system with great interest in order to harmonize with the international standpoint. It will be the turning point of our juridical regime.