유럽공통매매법(CESL)안에서의 약관의 충돌 문제

• 영문명: Conflicting standard contract terms (‘battle of the forms’) in the CESL (Proposal)
• 발행기관: 한국민사법학회
• 저자명: 신동현(Shin, Dong-Hyeon)
• 간행물 정보: 『민사법학』제66호, 447~473쪽, 전체 27쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2014.03.31

영문 초록

Art. 39 of the Common European Sales Law (CESL) [Proposal] pertaining to the issues of conflicting standard contract terms (the so-called ‘battle of the forms’) is almost identical to the provisions of the PECL and the DCFR in terms of contents, despite the significant contrast to the CISG. However, the CESL would have the certain significance in relation to the scope of application, considering that there is a difference in the scope of application for each norm. In conjunction with the issue of conflicting standard contract terms, Art. 39 of the CESL (Proposal) confirms once again the regulatory details of the PECL and the DCFR, which adopt the knock-out rule in contrast to the CISG which is considered to follow the last shot rule as a means to resolve aforesaid issue, thus confirming that the knock-out rule has taken root as the prevalent solution to the issue of conflicting standard contract terms in the unification and harmonization of the Europe s private laws or contract laws which has made progress with a series of consistency. Moreover, it is noticeable that the knock-out rule is proposed in the form of the binding regulation which is more applicable directly to the EU member countries compared to the PECL or the DCFR that may be relegated to the simple reference materials or model that does not have any legally binding force. In relation to the difference from the PECL and the DCFR, the utility of the PECL·DCFR may be enhanced through the application to the CESL, etc., as shown in the regulations pertaining to the conflicting standard contract terms, and there might be the room to replace the regulatory provisions of the CISG with the details, such as the CESL, in the case of the contracting parties that are the signatories of the CISG. Finally, it is considered that the CESL would make certain contribution to the unification and harmonization of the civil codes and contract laws, and Art. 39 is expected to have an implication for the revision of the Korean Civil Code, etc. in Korea.

목차

Ⅰ. 서

Ⅱ. 약관의 충돌 문제와 그 해결방안들

Ⅲ. CISG와 PECL·DCFR에서의 약관의 충돌에 관한 규율

Ⅳ. CESL안에서의 약관의 충돌 문제

참고문헌

키워드

유럽공통매매법 약관 약관의 충돌 서식전쟁 최후발포설(최후약관우선의 원칙) 상충조건배제설(충돌약관배제의 원칙) Common European Sales Law (CESL) [Proposal] battle of the forms, standard contract terms Conflicting standard contract terms last shot rule knock-out rule