국제물품매매계약상 특정이행에 관한 법적 쟁점 - CISG 제28조의 해석과 적용을 중심으로 -

Unlike continental European legal systems (civil law systems), specific performance in common law refers to an equitable remedy requiring exactly the performance that was specified in a contract. It usually granted onlywhen money damageswould be an inadequate remedy and the subjectmatter of the contract is unique. Thus, under common lawspecific performance was not a remedy,with the rights of a litigant being limited to the collection of damages. Consistent with the practice in civil law jurisdictions, United Nations Convention on Contracts for the International Sale of Goods (CISG) makes specific performance the normal remedy for breach of a contract for the sale of goods. Therefore, the buyer may require a breaching seller to deliver substitute goods or to make any reasonable repair. Likewise, the sellermay require the buyer to taker delivery of goods and pay for them. Despite this, Article 28 of the CISGrestricts the availability of specific performance where it would be unavailable under the domestic law of the jurisdiction in which the court is located. Thus, the CISG’smore liberal policy toward specific performance is restricted by common law. There are some legal issues in CISG’s specific performance availability by Article 28. This paper analyzes these issues as interpreting Article 28 of CISG, by examining various theories of application to actions for specific performance and comparing CLOUT cases involving CISG Article 28.