국제물품매매협약(CISG)에 따른 손해배상 범위와 책임제한의 문제 －대법원 2023. 9. 27. 선고 2021다255655 판결에 대한 평석－

This paper analyzes the criteria and methods for recognizing the application of the doctrine of limitation of liability and the scope of damages under the United Nations Convention on Contracts for the International Sale of Goods (hereinafter “Convention”), centering on the Supreme Court of Korea Decision 2021Da255655 decided on September 27, 2023. For a court to apply the doctrine of limitation of liability, which reduces the damages payable to the victim for the sake of fair and equitable distribution of damages, in cases governed by the Convention, there must be specific provisions within the Convention, or grounds to apply such a doctrine even in their absence. Articles 77, 80, and 39 of the Convention hardly serve as grounds for applying the doctrine of limitation of liability, and since a legal doctrine allowing the limitation of liability between parties for the equitable sharing of damages is difficult to find within the text of the Convention, a gap exists regarding the regulation of liability limitation. In the subject judgment, which discusses the seller's liability for damages for supplying non-conforming goods between a buyer and a seller under a sales contract, considering the doctrine of limitation of liability amounts to limiting the liability of the breaching seller. This falls under the “rights and obligations of the seller and the buyer arising from such a contract,” which Article 4 mentions as the sphere of application of the Convention. Since the Convention already contains similar provisions that limit a breaching party's liability under certain conditions, the doctrine of limitation of liability should be interpreted as a matter within the scope of the Convention, constituting an internal gap. The principle of adjusting the interests of parties and sharing damages fairly based on the principle of equity can be derived as a general principle of the Convention; thus, it serves as grounds to recognize the limitation of liability. However, the subject judgment, while applying the doctrine of limitation of liability under domestic law starting from the lower court, did not specify the basis for calculating the ratio by which the defendant’s liability was limited. Had more specific grounds been provided, it would have been more meaningful for the uniformity of the Convention's interpretation and application both domestically and internationally. Meanwhile, damages under the Convention are based on no-fault liability, adopt the principle of full compensation for damages determined by the difference theory, and are limited by foreseeability. The subject judgment recognized the seller's liability for lost passive damages, inspection costs for defects, and damages paid by the buyer to resale clients. Although liability for transport and storage costs was denied due to a lack of foreseeability, if the seller could foresee that the buyer would incur additional inspection costs according to trade practice after discovering non-conformity, as viewed by the court, then the transport and storage costs incurred in disposing of the non-conforming goods should also be considered within the realm of foreseeability.