국제물품매매계약에서 예견되는 계약위반에 대한 구제권에 관한 연구

Abstract

In a reciprocal contract such as a sales contract, if a party willing to perform its obligation anticipates the other party's future breach, should nevertheless perform its own obligation by the contract even the future breach becomes evident or clear. Subsequently, it fells into an unfair position in the contract. The United Nations Convention on Contracts for the International Sale of Goods(CISG) provides some provisions of preparatory remedy of innocent party facing the other party's future breach. That is, the right of suspension(Art. 71), the right of avoidance before the time of performance(Art. 72), and the right of avoidance of instalment contracts(Art. 73). These provisions enable the innocent party suspecting future breach to suspend its own performance or even to avoid the contract in advance. However, a party which alleges anticipatory breach and invokes remedies thereof, should aware of their hazardousness since these remedies become its own repudiation of performance when they are exercised inappropriately. Significant features that a party should note are as follows : First, A Party may suspend its own performance when "it becomes apparent" that the other party will not perform "a substantial part" of its performance. And the party suspending performance must immediately give notice to the other party and must continue with performance when the other party provides adequate assurance of his performance or the disturbance ceases. Second, to avoid the contract before time of performance, a party may invoke Article 72 of CISG. This article provides that the innocent party may declare avoidance of the contract when it is clear that the other party will commit a fundamental breach of contract prior to the date for performance. The innocent party may declare avoidance when it is "clear" that the breach will amount up to a "fundamental breach". In this case, the party intending to declare the avoidance of the contract must give a reasonable notice to the other party if time allows. Third, Article 73 (2) allows the party to declare the contract avoided with respect to a future instalment. If one party's failure to perform any of his obligations with respect to any instalment gives the other party good grounds to conclude that a fundamental breach of contract will occur with respect to future instalments, the other party may declare the contract avoided for the future instalment. The declaration of the avoidance should be sent in a resonable time. The purpose of this study is to provide guidelines of these provisions mentioned above and exercise thereof for whom engages in business. When relying on the CISG, the parties should understand the essentials of the dispute about the liability of their obligation. Moreover, they should understand the essentials, conditions and provisos of the remedies. Thus, this study provides precautions in light of practical affairs and considers the invocation and the application of the remedies for the parties of business, by means of the investigations of some international cases of the remedies to make decisions about liabilities in diverse situations. This study is expected to possibly become guideline in practical business, by actual parties of business apply the knowledge of the breach of the contract and the remedies.