유엔통일매매법상 계약해제시 물품의 반환불능과 책임

Avoidance of the contract causes the legal responsibility to make restitution to the other party as legal effects for breach of contract of one or both parties. However, if the destruction or deterioration of the all goods or part of the goods that a buyer has to make restitution to a seller occurs, it causes the problem about whether the buyer loses the right to declare the contract avoided or has to pay only the costs not to be returned not losing the right to declare the contract avoided. For this, clause 1 of art 82 in CISG claims that the right to declare the contract avoided or the right to deliver substitute goods becomes extinct in principle if it is impossible for him or her to make restitution of the goods substantially in the condition in which he received them and clause 1 of art 82 in CISG regulates that the right to declare the contract avoided or the right to deliver substitute goods can not be lost unless a buyer is not to make restitution substantially in the condition in which he received them only according to his guilty. However, art 82 regulates only general rules, so various interpretative problems have been raised. It decides if goods are transformed fundamentally before the buyer avoids contract, but it does not regulate liabilities about transformation. It does not have the regulation for the parties to distribute the risk for the case that the goods received are in the impossibility of restitution either. Furthermore, it concerns only the right to declare the contract avoided by a buyer, so it remains in problems if it applies to the right to declare the contract avoided by a seller, and to the case of the impossibility of restitution after the right to declare the contract avoided. CISG shows the clearer and more objective figures than our civil law because it constructs the conditions for avoidance of the contract in uniformity, considering the specific situation of international sales. This kind of legislative method was admitted to the Principles of International Commercial Contracts and the Principles of European Contract Law, and had an influence on German Civil Law revised in 2001. CISG has been in effect in Korea since March, 1st in 2005, and has given a lot of implication to the work of Korean Civil Code reform since 2009. Therefore, this paper is going to investigate risk of loss of the goods and liability of restitution in the case of avoidance of the contract which is regulated in art 82.