국제물품매매계약에 관한 UN협약(CISG) 제42조에 의한매도인과 매수인의 인식 요건

The rapid growth of intellectual property in international business transactions sheds a spotlight on the CISG Article 42. Compared to other articles in the CISG, it is hard to find researches and studies of the Article 42. The main point of the CISG Article 42 is that the seller is responsible only when she knew or could not have been unaware of the third party's intellectual property rights or claims at the time of the conclusion of the sales contract. The CISG Article 42, (1) gives the knowledge requirements of specific conformity of the goods to the seller, and it also allows exemptions from them. In this respect, a careful look should be taken at the contents and the meanings of the knowledge requirements provided in the CISG Article 42. To understand what the actual knowledge and the constructive knowledge mean and imply respectively, the territoriality of intellectual property rights must be considered. It will be helpful to refer to international or domestic rules which also include knowledge requirements. According to these rules and the general rules of interpretation of the CISG, the knowledge requirements can be understood to mean that a seller actually knew or that her cognizance can be regarded in the same light as actual knowledge, even when she didn't actually know. In conclusion, "could not have been unaware" means gross negligence on the whole. But more specifically, it is substantially and appreciably higher in magnitude than ordinary gross negligence, therefore, it is almost like actual knowledge, or willful misconduct. Furthermore, this knowledge requirements may draw the duty to investigate related intellectual property rights that affect goods both on a seller and on a buyer. This obligation differs in its specific contents and standards depending on the seller's or the buyer's individual situation. Under any circumstances, the performance of it should not be an overwhelming burden on each party to the sales contract. As a result, the critical point in applying the CISG Article 42 is whether the buyer can have reasonable expectation of receiving goods free from the third party's intellectual property rights. Along with this, the seller's responsibility also can be limited to the extent that she can reasonably expect or manage the contractual risk. Ultimately, the most important point in the international sale of goods is that the equilibrium must be maintained between the seller's and the buyer's contractual duty and responsibility.