국제물품매매협약(CISG)의 본질적 계약위반과 신용장 개설의무위반- 대법원 2013.11.28. 선고 2011다103977 판결을 중심으로

The first Supreme Court ruling (Supreme Court 2013.11.28. ruling 2011da103977) applying the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is concerned with fundamental breach of contract under Article 25 of the CISG and the seller’s right to avoid the contract under Article 64 of the CISG. According to this ruling, a buyer adding conditions to a documentary credit that were not previously agreed to by the seller constitutes fundamental breach of contract and, therefore, the seller is entitled to avoid the contract under Article 64. I agree with the court’s ruling because adding conditions that were not previously agreed to eventually burdens the seller. Considering the significance of the CISG, however, the Supreme Court should have suggested specific elements for the fundamental breach of contract. It is important that legal status of opening documentary credits in CISG which are often used in the international sale of goods should be precisely stipulated. On the other hand, the Supreme Court stated that the mere delay in opening documentary credits did not constitute a fundamental breach of contract. However, it did not specify the reason for that result. In my opinion, different conclusions may be drawn from specific cases rather than only one conclusion such as the Supreme Court’s ruling. In short, documentary credits must be opened within a certain time before the shipment date; otherwise, it constitutes a fundamental breach of contract because documentary credits are a precondition for shipment preparation by the seller.