국제물품매매계약에 관한 UN협약(CISG)상 이행기 전 계약해제에 관한 법적 쟁점

United Nations Convention on Contracts for the International Sale of Goods (CISG) Article 72 entitles a seller or a buyer to avoid the contract if it becomes clear before the date for performance that the other party will commit a fundamental breach. Article 72 recognizes that the remedy of avoiding the contract based on an anticipatory fundamental breach needs to be tightly circumscribed. It requires that it be clear that a fundamental breach of contract will be committed, and in this respect arguably requires a greater certainty than is required for the application of Art. 71. Article 72 of CISG provides for a contract to be avoided for an anticipatory breach. It complements the suspension of performance provisions in Article 71 and the provisions in Articles 49 and 64 enabling the buyer and the seller to avoid the contract for breaches which have actually occurred. This paper analyzes the following issues as interpreting Article 72 of CISG. First, the most difficult aspect of interpreting Article 72(1), is to establish what measure of certainty is required that a fundamental breach will occur. Thus, the question concerns what is meant by an anticipated fundamental breach. Second, interpreting Article 72(2), it is the problem whether the aggrieved party should give the other party prior notice that he intends to avoid the contract in order to permit the other side a chance to provide adequate assurances that he will perform. Therefore, the issue is whether notice of intent to avoid is the mandatory requirement or not. Third question concerns whether Article 72(3) includes implied anticipatory repudiation of the contract or not.