종래 EU 회원국별 계약법의 상이는 계약주체로 하여금 각양의 거래에 있어 상당한 비용부담과 장애를 현실화하였는데, 예컨대 그 절차와 과정의 복잡성에 기한 거래의 좌절은 물론이고, 기대할 수 없었거나 예상할 수 없었던 뜻밖의 필요외적 비용을 발생케 하여, 그 결과 기업에게는 제한적 기업 활동에 머무르게 하거나, 소비자에게는 다양한 물품과 서비스의 수혜에 기한 물적 효용 및 기대이익의 상실을 초래하였다. 모름지기 이 같은 계약법의 상이 내지 대립으로부터 비롯된 통일법의 부재는 역내 경제ㆍ사회발전에 대한 상대적 회의감 내지 박탈감을 지속적으로 조장하였거나 조장해가고 있는 실정이다.
이 같은 상황을 고려하여 EU 위원회에서는 역내 계약법의 통일화를 실현하기 위한 취지에서, 이른바 ‘유럽공통매매법안’[Common European Sales Law(p), ‘CESL’]을 EU 의회에 제안하였는데, CESL은 역내 물품 및 이와 관련한 서비스 매매 그리고 디지털 콘텐츠의 자유로운 상거래 활동을 견인하기 위한 취지에서 회원국별 실정법에 선택적으로 보충 또는 채택할 수 있도록 제안되었다.
본 연구는 그간의 국제상거래에 있어서 가장 성공한 선도적 입법례로서 그 지위를 확고히 하고 있는 ‘국제물품매매계약에 관한 UN 협약’[United Nations Convention on Contract for the International Sale of Goods (1980), CISG]과의 비교법적 고찰을 통해 실무계를 향하여 CESL의 명료한 법리적 이해를 제고함에 있어 일말의 단초제공에 본연의 목적을 둔 논문으로서, 이로부터 EU에 진출하고 있거나 그 진출을 의욕하고 있는 우리나라 기업이 EU와의 무역계약에 있어 예견 가능한 다종다양의 법적 문제점에 대응하고 나아가 이에 관련한 유의성을 제고하거나 분별함에 있어 총체적인 법적 대응태세 부양을 의도하였다.
본 연구는 이상의 논점을 배경에 두고 CESL상 필요외적 ‘소비자계약’[B2C]은 제외하고 ‘기업 간 계약’[B2B]에 초점을 맞추어 그 구성체계와 범위를 계약의 성립, 계약의 이행 및 계약의 종료단계로 삼분하여 당해 개별사안에 관한 법적 기준을 추론하고 그 결과를 국제적 통일 법으로서의 지위를 견고히 하고 있는 CISG와의 비교를 통하여 계약당사자 간 당해 법리적 실익 내지 실무적용상 계약책임에 관한 명료한 이해를 도출한 논문이다. 본 연구의 주요 골자를 구성체계에 기하여 차례로 분설하면 다음과 같다.
첫째, CESL의 제정취지ㆍ입법연혁ㆍ적용범위ㆍ구성체계 등을 포함한 CESL의 의의, 각각의 계약단계별 법적 기준, 특징 등에 관한 개괄적 수준에서의 내용을 명확히 제시하였다.
둘째 B2B 계약에 주안점을 두고 CESL의 개별조문을 중심으로 각각의 계약단계에서의 법적 기준 및 특ㆍ장점에 관하여, 이를 계약의 성립 전과 계약의 성립단계로 각각 구분하고, 전자에서는 B2B에서 계약당사자가 제공하여야 할 정보, 전자적인 방법에 의한 계약체결, 정보제공의 정확성 보장, 정보제공의무 위반에 대한 구제 등을, 후자에서는 계약체결의 방법, 의사표시의 하자, 계약내용의 평가 등의 결과를 도출하고 그 결과를 CISG와의 비교를 통해 명료히 추론하였다.
셋째 계약의 이행에 관한 CESL의 법적 기준을 매도인의 의무와 매수인의 의무로 대별하고, 각각의 의무위반에 기한 매수인과 매도인의 구제수단에 관하여 마찬가지로 CISG와 비교ㆍ고찰하였다. 넷째 계약의 종료에 관한 CESL의 법적 기준에 관하여 손해배상과 원상회복 및 소멸시효로 대별하고 각각의 법률효과와 이에 대한 CISG의 처지를 비교ㆍ고찰하였다.

Differences in international private law between EU Member States in international trade within the European internal market have caused the parties of a contract to bear considerable transaction costs as well as to encounter obstacles to international trade. For example, due to complicated international private law process and procedure, traders have to pay unnecessary costs which are not expected or anticipated. As a result, traders are dissuaded from entering international trade and limit their operations to domestic trade, while consumers lose the opportunity of the utility of material and anticipated profit coming from the benefit of diversified available goods and services by international trade. It is clear that absence of a single uniform set of international private law rules resulting from the differences or conflicts between international private law rules of the EU Member States has greatly contributed to creating relative skepticism or obstacles against the EU internal economic and social establishment and development.
Against this backdrop, the European Commission drafted and proposed the Common European Sales Law(p) to the European Parliament for the realization of a uniform set of international private law rules within the European internal market. Since its purpose is for free international commercial activities for the sale of goods, for the supply of digital content and for related services, it was proposed to enable EU Member States to adopt or supplement as their substantive law according to their options. This study is for providing the starting clue in improving the clear and legal understanding of the CESL for traders and practitioners on a comparative analysis with the United Nations Convention on Contract for the International Sale of Goods(1980), CISG which has its solid status as the most successful leading legislation in international commercial contracts. Accordingly, this study will contribute to enabling Korean companies, which have established or want to establish their business places in EU Member States, to cope with complex and diversified legal issues which are foreseeable in international trade with their EU Member States business partners, and furthermore, to respond to comprehensive legal actions in discerning or improving the significance related to international private law rules. Bearing the above mentioned matters, this study is focused on business-to-business(B2B) international trade by excluding business to customer(B2C) international trade from the scope of the CESL, and infers the legal base on an individual issue in question by dividing into three main stages: contract establishment stage, contract implementation stage, and contract termination stage. As a consequence, this study is for getting the clear understanding on contractual liabilities in terms of practical application and also juridical benefits between the parties to a contact through a comparative analysis with the CISG which has been standing firmly as the international uniform commercial contract law rules. The results of this study within its scope are established separately and summarized according to the sequence of the composition of the CESL as follows:
For the meaning of the CESL, it does not require amendments to the pre-existing international private law of the EU but is created in order to reserve the legal status as the special law when the EU Member States adopt it. As a result, it greatly contributes to promoting the harmonization of the international private law of the Member States. The CESL is applied voluntarily subject to the agreement of the parties to a contract for the application of the CESL to international commercial contracts. The legal bases of obligation and non-performance of the parties to a contract within the scope of this study are very concrete and wide-ranged. In order words, these bases are organized symmetrically according to the sequence of the composition of the CESL.
First, regarding the legal bases of the contents of a contract, they are composed of defects in consent, gross disparity or unfairness of contract, legal uncertainty on insertion of an element of the trader''s standard terms and conditions, legal effect on transfer of ownership or security right, and validity of contract. A contract for the supply of digital content or a related service contract is also added to the CESL together with a sales contract. Furthermore, it covers the provisions on battle of forms and therefore, has comprehensive and condensed contract law rules.
Second, the legal bases on conclusion of contract are very concrete and comprehensive as mentioned above. In other words, the rules of the CESL are interpreted autonomously in accordance with the well-established principles on the interpretation of Union legislation and its purpose. Furthermore, questions concerning matters falling within the scope of the CESL, which are not expressly settled, should be resolved only by interpretation of its rules without recourse to any other law. For the application of the CESL, it sets out interpretation, reasonableness, no form required, not individually negotiated contract terms, termination of a contract(which is equivalent to avoidance in case of CISG), mixed-purpose contracts, notice, and computation of time, and unilateral statements or conduct.
Third, regarding the legal bases on the pre-contracting stage, if a supplier does not provide the information in question before the conclusion of a contract for the sale of goods, supply of digital content or provision of related services in relation to pre-contractual information to be given by a trader dealing with another trade, the CESL treats such situation as violation of good faith and fair dealing. Furthermore, regarding distance contracts, the CESL accepts the conclusion of contract by electronic means in cases where an electronic mail or other individual communication is not designated. A party, who should provide information to the other party before or at the time a contract is concluded, has a duty to take resonable care to ensure that information supplied is delivered correctly in order to secure making a binding contract and also to observe the obligations mentioned otherwise in the CESL. Under B2B international trade, the CESL sets out that a party, who supplies information before or at the time of the contract is concluded, has a duty to take a reasonable care. In this connection, if incorrect or misleading information has been supplied to the other party in breach of the duty, the CESL allows that party to refer to the remedies, who reasonably relies on that information in concluding a contract with the party who supplied it.
Fourth, as the legal bases on the contracting stage, the CESL states the agreement of the parties to an contract, legal binding by the agreement, sufficient content and certainty to be given legal effect as the requirements for the conclusion of a contract(formation of contract in case of CISG). Also, in the case of defects in consent, it deals with a party''s right to avoid a contract if the other party had induced the conclusion of the contract in mistake, by fraud or threats or unfair exploitation. In addition, it covers notice of avoidance, effects of avoidance in terms of validity, confirmation, damages for loss, exclusion or restriction of remedies, and choice of remedies, Furthermore, when assessing what is in the contract, general rules on interpretation of contracts, contents and effects, and unfair contract terms are considered.
Fifth, as the legal bases for the performance of contract under the CESL, the seller''s obligations are divided into general provisions, delivery, and conformity of the goods and digital content. In the case of general provisions, they are subdivided into main obligation of the seller, and performance of a third party, which may be entrusted by the seller. In the case of non-performance of an obligation by the seller, the buyer has the right to resort to the remedies. The buyer''s remedies contain general provisions, cure by the seller, requiring performance, withholding performance of buyer''s obligations, termination(avoidance in case of CISG), price reduction, and requirements of examination and notification in a contract between traders. In the case of general provisions, they are subdivided into overview of buyer''s remedies and limitation of remedies for digital content not supplied in exchange for a price. On the other hand, the buyer''s obligations under the CESL are divided into general provisions, payment of the price, and taking delivery. General provisions describe main obligations of the buyer and clarify that the buyer must pay the price, take delivery of the goods or the digital content and take over the relevant documents thereon. In the case of non-performance of an obligation by the buyer, the seller has the right to resort to the remedies. For the seller''s remedies, they are divided into general provisions, requiring performance, withholding performance of seller''s obligations, and termination(avoidance in case of CISG).
Sixth, regarding the legal bases on passing of risk, they consist of general provisions and passing of risk in a contract between traders. General provisions cover effect of passing of risk and identification of goods or digital content to contract. In relation to effect of passing of risk, loss of, or damage to, the goods or the digital content after the risk has passed to the buyer does not discharge the buyer form the obligation to pay the price, if loss or damage is not resulted from an act or ommission of the seller. In relation to identification of goods or digital content to contract, the risk does not pass to the buyer until the goods or the digital content are clearly identified as the goods or digital content to be supplied under the contract, whether by the initial agreement, by notice given to the buyer or otherwise.
Seventh, regarding the legal bases on termination of a contract as the post measure when the contract is not working anymore, they are composed of three parts: damages and interest, restitution and prescription. Damages and interest are divided into damages, general provisions on interest on late payments, and late payment by traders. Damages are explained by dividing into right to damages, general measure of damages, foreseeability of loss, loss attributable to creditor, reduction of loss, substitute transaction, and current price. Restitution is described by dividing into restitution on avoidance in case of invalidity of contract or on termination in case of non-performance of contract, payment for monetary value, payment for use and interest on money received, compensation for expenditure and equitable modification. Prescription is explained by dividing into general provisions, periods of prescription and their commencement and extension of periods of prescription. General provisions explain right subject to prescription into a right to enforce performance of an obligation and any right ancillary to such a right. Regarding period of prescription, the short one is two years and the long one is ten years. However, in the case of a right to damages for personal injuries, period of prescription for such right is thirty years. Regarding commencement, the short one begins to run from the time when the creditor has become, or could be expected to have become, aware of the facts as a result of which the right can be exercised, while the long one begins to run from the time when the debtor has to perform. However, in the case of a right to damages, the CESL clarifies that it begins to run from the time of the act which gives rise the right.
Lastly, my personal view based on the result of this study as the issue outside of its scope is as follows:
The CESL is proposed for the purpose of facilitating the free commercial activities for the sale of goods, for the supply of digital content and for the provision of related services within European internal market. However, there are some doubts on whether the CESL functions properly following the original purpose of its establishment because there is the Principles of European Contract Law(PECL), which has secured its status as the legal source of the pre-existing international commercial contract law, and therefore, there is a high possibility of a conflict with the PECL in view of the equity of legal principles. The European Commission links the position of CESL differently from that of PECL by emphasizing that the CESL is focused on ensuring a high level of consumer protection and also protecting small and medium sized companies, who are comparatively weak in terms of negotiation power. However, the European Commission''s intention for the establishment of the CESL is not persuasive since it can be accomplished by making a set of uniform consumer protection law. Furthermore, when considering that the CESL is proposed as the opt-in law for the supplementation or adoption to the substantive law according to EU Member States'' options, there are more doubts on whether the CESL will have the firm status as a single uniform set of contract law rules. In addition, even the application scope of the CESL, in itself, adds more doubts on the status of the CESL when considering the circumstances of accepting a contract for the supply of digital content by electronic communication means, putting aside the question of the consumer sales. Nevertheless, since the CESL intends its original purpose by succeeding to the PECL without adjusting any legal principles reflected thereon in appearance, it seems to me that there are no special problems in terms of all the matters of organization and contents of provisions contained in the CESL. It implicates that the PECL is strong and solid in terms of the validity of legal principles as well as characteristics and strong points as the general principles of the international private law.