CISG 제71조와 제72조에 대한 비교 고찰

Between the time of contract formation and contract performance, a variety of communications or events might give one of the party’s concerns about the other party will be able to fulfill its future contract performance. Concerning this situation, CISG has Art.71 and Art.72. Art.71 states that a party may suspend the performance of his obligation if it becomes apparent that the other party will not perform a substantial part of his obligation. Art.72 states that If it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. Although most commentators shows that the comparison of the standards governing the certainty of future breach whether is apparent or clear indicates that Art.72 standard requires a higher degree of probability, close scrutiny of their statements shows that they all describe the Art.71 as requiring nearly the same degree of high probability as in Art.72. Furthermore the twp provisions themselves show that both Articles concerning the seriousness of the breach require essential aspects of a fundamental breach. The linguistics of the two articles present a semantic non-conflict. Suspension under Art.71 essentially a just an alternative remedy to avoidance under Art.72 for fundamental breach.