일본의 CISG 적용 상황과 과제

This paper examines how the CISG has been applied and interpreted in Japan since the country acceded to the Convention in 2008 and identifies the challenges that remain. Through this analysis, this paper aims to discuss future challenges for achieving the uniform interpretation of the CISG and for expanding its application. To clarify the current status of the CISG’s application in Japan, this paper first surveys all Japanese court decisions in which the CISG has been referenced or applied to date. So far, there are two decisions that referred to the CISG prior to Japan’s accession, six decisions that mentioned the CISG in the course of litigation after accession, and three decisions that applied the CISG after accession. Among these, only two judgments, both rendered in 2020, are often regarded as cases in which the CISG was substantively applied. Even seventeen years after Japan’s accession, awareness and practical use of the CISG in business practice remain significantly lower than in other countries, and the number of relevant court cases is exceptionally small. Even in the two court decisions rendered in 2020, a number of challenges remain with respect to the interpretation and application of the Convention. For example, in cases where the contract contained specific provisions that could have been directly applied, the courts nevertheless applied the CISG and referred to the contractual terms only in the course of interpreting the relevant CISG provisions. Moreover, although the cases concerned issues of lack of conformity of the goods, the courts did not address the applicability of Articles 38 and 39 of the CISG. In addition, despite the existence of CISG provisions governing the requirements for the claims for damages arising from defects, the courts took the view that the Convention does not expressly regulate this issue. In light of these circumstances, this paper emphasizes the need to clarify the relationship between contractual clauses, CISG provisions, and the supplementary applicable law as determined in accordance with the private international law rules of the forum. It also highlights the importance of accurately identifying and citing the CISG provisions relevant to the issues in dispute. Furthermore, the paper suggests that international collaborative research and legal education should be strengthened in order to promote the uniform interpretation of the CISG and to increase its use in practice.