상사매매에 있어 목적물보관 및 공탁의무
Buyer's Duties to store or deposit subject matters in commercial dealing
서완석(가천대학교)
26권 4호, 89~112쪽
초록
In cases of a sale between merchants, the buyer shall, upon receipt of the subject matter, inspect it without delay, and immediately give notice therof to the seller if any defect or deficiency in numbers is found therein; otherwise, he has no right to rescind the contract, to demand price cuts or to claim damages thereby(Article 69). Korean Commercial Act Article 70 also deals with Buyer's Duties to store or deposit subject matters in cases falling under the Article 69, Article 70 enacts a provision that a buyer shall, even though he rescinded the contract, store or deposit the subject matter of the sale at the seller's expense. But the provision requires a buyer that he/she sell it by auction and store or deposit the proceeds therefrom with the permission of a court(Article 70①). Also, when the buyer has a public auction in accordance with the provisions of preceding paragraph, he/she shall give notice thereof to the seller without delay(Article 70②). I think that this Article would be consistent with the principle of good faith and simplicity, rapidity in the Commercial Act. A buyer may still completely refuse to cooperate with the seller in determining the value of the benefit conferred by the goods or part of them. Article 70 deals with preservation of the goods, an issue that can present itself in various circumstances, including when the buyer refuses to take over the goods, or when he has received them but intends to exercise his right to send them back to the seller because of a defect that founded in the process of goods inspection. But I think that Article 70 of Korean Commercial Act has some problems compared to CISG and UCC and the like. Especially, it gives undue value to the seller and getting the permission of a court in selling by auction and store or deposit the proceeds therefrom is not compatible to the seller's emergency selling. Therefore, I suggest to amend Commercial Act that the buyer can sell subject matter by auction and store or deposit the proceeds therefrom after giving preemptory within a reasonable period fixed by him without getting the permission of a court.
Abstract
In cases of a sale between merchants, the buyer shall, upon receipt of the subject matter, inspect it without delay, and immediately give notice therof to the seller if any defect or deficiency in numbers is found therein; otherwise, he has no right to rescind the contract, to demand price cuts or to claim damages thereby(Article 69). Korean Commercial Act Article 70 also deals with Buyer's Duties to store or deposit subject matters in cases falling under the Article 69, Article 70 enacts a provision that a buyer shall, even though he rescinded the contract, store or deposit the subject matter of the sale at the seller's expense. But the provision requires a buyer that he/she sell it by auction and store or deposit the proceeds therefrom with the permission of a court(Article 70①). Also, when the buyer has a public auction in accordance with the provisions of preceding paragraph, he/she shall give notice thereof to the seller without delay(Article 70②). I think that this Article would be consistent with the principle of good faith and simplicity, rapidity in the Commercial Act. A buyer may still completely refuse to cooperate with the seller in determining the value of the benefit conferred by the goods or part of them. Article 70 deals with preservation of the goods, an issue that can present itself in various circumstances, including when the buyer refuses to take over the goods, or when he has received them but intends to exercise his right to send them back to the seller because of a defect that founded in the process of goods inspection. But I think that Article 70 of Korean Commercial Act has some problems compared to CISG and UCC and the like. Especially, it gives undue value to the seller and getting the permission of a court in selling by auction and store or deposit the proceeds therefrom is not compatible to the seller's emergency selling. Therefore, I suggest to amend Commercial Act that the buyer can sell subject matter by auction and store or deposit the proceeds therefrom after giving preemptory within a reasonable period fixed by him without getting the permission of a court.
- 발행기관:
- 한국기업법학회
- 분류:
- 법학