私法의 統一과 國際物品賣買契約에 관한 유엔협약 (CISG)

인권과 정의 406:7-26 (2010)
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Abstract
In retrospect of Hague convention on international sale of goods, the efforts had been poured in the initiative of UNCITRAL since 1968 triggering more welcome international treaty on the area of law. The efforts came to reality where the committee in action, comprised of 14 countries, concluded a final draft in 1978. In 1980, it was adopted as United Nations Convention on Contracts for the International Sale of Goods(CISG). While the treaty is deemed a marvellous success within the purview of uniform private laws, it is also true that there arises a severe criticism. One of criticism points to imprecise and ambiguous terms CISG employs that harms the uniformity in its interpretation. However, I would support the strength of CISG that CISG can be interpreted consistently in itself in terms of its international character, which means imprecision of CISG, short coverage of hardship issues, imbalance between parties, and inept nature to commodity transactions. In support of CISG, these criticisms either overlook the intrinsic difficulties underlying production of the uniform laws or seems to be groundless on various points of views. On the other hand, the true uniform laws presuppose uniformity in the application of treaty. We can see some extent of difference in terms of the role of precedents between the common law and civil law countries. It is encouraging that the recent practice of civil law countries, including Italy, Poland, Denmark and so on, tend to cite the foreign precedents for the cases of CISG laws. Within the regime of common law countries, the rule of “stare decisis” prescribes that the national precedents should govern as binding authority while those of other common law countries function to be a persuasive authority. This means that the practice of civil law countries has considerably developed as similar to that of common law counterparts. While they seem to use foreign precedents as persuasive authority like their counterparts, or in the least accept as inspirational authority, the application of CISG grows to be made in a shared fashion for true uniform laws. This development seems to prosper at the advent of academic database as well as the contribution of CISG experts.
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