최근 국제적 동향에서 바라 본 우리 民法上의 賣渡人의 瑕疵擔保責任에 관한 硏究

The Seller s Defects Liability on Movables in korean Civil Law in the light of international s Trend

This thesis is to study about the Seller s Defects Liability on Movables in the light of international s trend. I have the opinion that the conclusion drawn out through comparative laws is acceptable in the light of the theory of the nonperformance of an obligation liability, it is a starting point to settle problems of our Civil Code. And, this thesis suggests legislative solutions. 1. Interpretation of Seller s Liability for Warranty against Defects in Korean Civil Law First. there is no provisions of the concept of defect in our Civil Code and Commercial Code. I think that it is preferable to understand the concept of the defect on movables as non-conformity of contract, which include discrepancy of explicit agreements, aliud-delivery, non-conformity of packaging, it consists of nonperformance of an obligation liability. Non-conformity of contract is decided first by the agreements of contract between parties. Except where the parties have agreed otherwise, goods must be fit for the ordinary purposes, any particular purposes, and expressed implied warranty. On the end, it is decided by making clear the purpose of contract. Second, I think that the repair of defect can be admitted, if we can regard articles 580, 581 of Civil Law as examples in remedies. On the other hand, I think that the buyer s right to require performance can extend to the repair of the goods, in Article 389 of Korean Civil Law, Because both liability systems are similar, in fact that there is not the requirement of a fault for remedy of the Buyer right. I think that the buyer may exercise the seller claims of repair and part of delay in both liability systems. Third, the condition of avoidance of contract should be interpreted in stricter manner than the condition of the other remedies. I think that the concept of the impossibility meeting contract goal in our civil law is superior to a fundamental nonperformance (fundamental breach of contract) in the light of 「 contract maintenance rule」. Fourth, I suggest that damages should be interpreted to mean the 「Performance Guarantee」, because avoidance or damages can exercise alternatively with a claim for delivery of substitute goods in Art 582(2) Civil Code, and stands on the premise that both rights have equivalent values, 2. legislative solutions(The Accommodation of International Theories) First. the repair of the defective goods should be viewed as a major right of the buyer. And it should not be restricted in case of defects which could not accomplish the purpose of contract, although when the repair costs excessively. Second, though it is common to limit a period of notification on the defect in trading between merchants to reasonable period from the time of recognition of the defect. It is not desirable to limit the period of notification on the defect of the hidden defect on goods to 6 months from the time of receiving. This period is unjustifiably short comparatively with international standard. Legislatively it is required either to extend the period to 1 year or 2 years or to replace the Article with a period for exercising the right. Third, comparatively it is more common to require buyer s recognition of defect and gross mistake for the ignorance of defect. Accordingly it will be legislatively desirable to require a recognition and a gross mistake of buyer as a requisite of elimination of liability, with the exceptions of when there are a recognition and a gross mistake of the seller and when the seller guarantees nature and characteristics of goods. Fourth, it needs that reduction of price is institutionalized as an ultimate remedy and the Bill of Amendment of Civil Law by Department of Justice provided right to reduce price in Article 580 section 1. But it did not provide about the basic time