종류매매에서 매수인의 완전물급부청구권의 제한

Where an unascertained good has a defect, apart from the cancellation right of contract and the claim for damages, our civil law provides, under Article 581 Clause 2, that the buyer can claim a delivery of new good without defect from the seller, i.e. the buyer’s right to claim for conforming goods in a sale of unascertained goods. The seller’s liability to provide the good in response to the buyer’s right to claim for conforming goods is the liability to provide the same, but flawless good without receiving any payment from the buyer. Thus, if the buyer’s right to claim for conforming goods is allowed to the point the seller’s disadvantage increases excessively through the implementation of the seller’s liability, it can oppose the essence of marketing, which is “equivalent trading relationship.” At some point, the right must be limited. While civil law does not place any limitation on this right, recently the Supreme Court has been limiting the implementation of the buyer’s right to claim for conforming goods in the 2012다72582 sentence on the basis of the principle of fairness. Referring to the German legal bibliography, which has a relatively detailed regulation on the claim for appeal, and to the content of the amendment of Japanese civil law, which recently established a regulation on the claim for appeal, the buyer’s right to claim for conforming goods, which is a type of claim for appeal, can be limited on the basis of inability, which is the exclusion grounds of the right of execution under law on default. It can also be limited when it is admitted that the seller’s liability is unfair under the principle of good faith. Meanwhile, our civil law recognizes buyer’s right to claim for conforming goods only in the sale for unascertained goods, so it would be rare for the implementation of the right to be eliminated on the basis of reasons above. If anything, in the sale for unascertained goods, there might be cases where defect maintenance is impossible. Furthermore, in a situation where the buyer’s right to claim for conforming goods is inhibited due to reasons under principle of good faith, whether the implementation is just or unjust should be judged by comparing the seller’s cost in providing the new good and the buyer’s marginal benefit in reflection of social norms. At this time, aspects, such as the severity of the defect of the good, the ease of defect maintenance, the potential of fixing the defect, the reduced value of the used good due to the defect, the exchange value of the good after defect maintenance, the price of the flawless good, the potential for fulfilling the contract purpose due to the defect, the property of the good, the exchange value of the good with defect that will be returned to the seller, and the avoided cost or gained benefit by the seller due to the buyer’s right to claim for conforming goods, should be considered. Meanwhile, on the basis that the buyer did not separately choose defect maintenance under defect liability, it would generally be difficult for the buyer’s claim for damages against the seller to be recognized. The verdict does not provide clear standards for how much the cost of providing a new good, compared to defect maintenance, should be for the buyer’s right to claim for conforming goods to be limited. Even though there is space for improvement, the judgment that the buyer’s right to claim for conforming goods should be limited in specific situations is considered to be fair.