한국 법원에서 중국법을 보충적 준거법으로 한 국제물품매매협약의 흠결 보충: 대금 및 기타 연체금액의 지연손해금의 이자율과 상계의 법리를 중심으로

In recent years, with growing economic interactions between South Korea and China, the number of trials of disputes related to contracts for the sale of goods between the two countries is increasing. In the process of trials, the“United Nations Convention for the International Sale of Goods”takes priority over state law and is applied as the substantive law of the case. However, there are many circumstances in which Chinese law is applied as the governing law in the cases where the issues which can not be solved by the convention exist. To draw an accurate conclusion by using Chinese law as a supplementary governing law, South Korean courts should take steps as follows. Firstly, clearly identify gaps of the convention and determine whether the issue in dispute is an internal gap or an external gap of the convention. Secondly, demonstrate precisely basing on the knowledge of Chinese law and the interpretation of Chinese courts. Accordingly, the issues of gap-filling of the convention basing on Chinese law in South Korean courts are discussed as follows. After giving theoretical explanations of the gaps and gap-filling of the convention(Ⅱ), this paper introduces some cases in which South Korean courts fill gaps of the convention by Chinese law(Ⅲ). Then, it analyzes whether interest rate of price or any other sum(Ⅳ) and offset(Ⅴ) are either internal or external gaps of the Convention. Furthermore, it is expected to gives an account of how to make a judgment comply with Chinese law and the interpretation of Chinese courts. Last but not least, this paper aims to give a guideline to South Korean courts when judging the above issues basing on Chinese law by examining critically the cases mentioned in Chapter Ⅲ.