[국제물품매매계약]유럽契約法原則(PECL)의 一般規定 및 契約의 成立에 관한 規定과 CISG, PICC 規定과의 比較硏究

A Comparative Study on the Legal Differences between PECL and CISG, PICC focused on the General Provisions and Formation of Contracts

The PECL have been prepared by the CECL('Lando Commission'). Also the PECL have been drawn up by an independent body of experts from each member state of the european union under a project supported by the european commission and many other organizations. The PECL are stated in the form of articles with a detailed commentary explaining the purpose and operation of each article. In the comments there are illustrations, ultra short cases which show how the rules are to operate in practice. Each article also has comparative notes surveying the national laws and other international provisions on the topic. The PECL start with an affirmation of freedom of contract, and do not make distinctions between general civil, commercial or consumer contracts. Salient features of the general provisions of the PECL, Firstly freedom of contract and pacta sunt servanda[Art. 1:102 (1), (2).], Secondly good faith and fair dealing, most of the PECL are non-mandatory. PECL provides that the parties may determine the contents of their contract "subject to the requirements of goods faith and fair dealing, and the mandatory rules established by these principles[Art. 1:102 ()1.]." and lays down that "the parties may exclude the application of any of the principles or derogate from or vary their effects, except as otherwise privided by these principles.". Thirdly duty to co-operate that is "each party owes to the other a duty to co-operate in order to give full effect to the contract.". In the cases of the formation of contract, conditions for the conclusion of a contract(Art. 2:101), terms not individually negotiated(Art. 2: 104), provision of offer and invitation to make offer[Art. 2:201 (3).], and in the case of revocation of an offer, PECL Art. 2:202 follows CISG Art. 16, however, with one important modification. furthermore contracts not concluded through offer and acceptance(Art. 2:211), especially in respect to liability for negotiations, negotiations contrary to good faith(Art. 2:301), breach of confidentiality(Art. 2:302). In the countries of the european union where the trade has increase many times since the common market was established, unification of the contract law will become more urgent the more the trade grows. The CECL has provided general principles of contract law which may be used by parties and arbitrators who wish to apply a non-national legal system. At the same time they have made a preparatory work for a code which will be needed when it is decided to unify the laws of contract in the european union. Altogether with the CISG and PICC, the PECL will serve as a guideline for countries wishing to legislate.