국제전자정보거래(國際電子情報去來)에 관한 입법동향(立法動向)

허해관,Hur, Hai-Kwan 한국무역상무학회 2004 貿易商務硏究 Vol.23 No.-

This paper focuses on two recent legislative developments in electronic commerce: the "Uniform Computer Information Transactions Act" ("UCITA") of USA and the "preliminary draft convention on the use of data message in [international trade] [the context of international contracts]" ("preliminary draft Convention") of UNCITRAL. UCITA provides rules contracts for computer information transactions. UCITA supplies modified contract formation rules adapted to permit and to facilitate electronic contracting. UCITA also adjusts commonly recognized warranties as appropriate for computer information transactions; for example, to recognize the international context in connection with protection against infringement and misappropriation, and First Amendment considerations involved with informational content. Furthermore, UCITA adapts traditional rules as to what is acceptable performance to the context of computer information transactions, including providing rules for the protection of the parties concerning the electronic regulation of performance to clarify that the appropriate general rule is one of material breach with respect to cancellation (rather than so-called perfect tender). UCITA also supplies guidance in the case of certain specialized types of contracts, e.g., access contracts and for termination of contracts. While for the most part carrying over the familiar rules of Article 2 concerning breach when appropriate in the context of the tangible medium on which the information is fixed, but also adapting common law rules and rules from Article 2 on waiver, cure, assurance and anticipatory breach to the context of computer information transactions, UCITA provides a remedy structure somewhat modeled on that of Article 2 but adapted in significant respects to the different context of a computer information transaction. For example, UCITA contains very important limitations on the generally recognized common law right of self-help as applicable in the electronic context. The UNCITRAL's preliminary draft Convention applies to the use of data messages in connection with an existing or contemplated contract between parties whose places of business are in different States. Nothing in the Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate or false statements in that regard. Likewise, nothing in the Convention requires a contract or any other communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract to be made or evidenced in any particular form. Under the Convention, a communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract, including an offer and the acceptance of an offer, is conveyed by means of data messages. Also, the Convention provides for use of automated information systems for contract formation: a contract formed by the interaction of an automated information system and a person, or by the interaction of automated information systems, shall not be denied on the sole ground that no person reviewed each of the individual actions carried out by such systems or the resulting agreement. Further, the Convention provides that, unless otherwise agreed by the parties, a contract concluded by a person that accesses an automated information system of another party has no legal effect and is not enforceable if the person made an error in a data message and (a) the automated information system did not provide the person with an opportunity to prevent or correct the error; (b) the person notifies the other party of the error as soon as practicable when the person making the error learns of it and indicates that he or she made an error in the data message

미국(美國) 계약법(契約法)하에서 소위 "쉬링크랩라이센스" 계약(契約)에 관한 일고찰(一考察)

허해관,Hur, Hai-Kwan 한국무역상무학회 2003 貿易商務硏究 Vol.20 No.-

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certain procedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.

인코텀즈 그리고 개정 인코텀즈 2020

허해관(Hai-Kwan Hur) 한국무역상무학회 2021 貿易商務硏究 Vol.89 No.-

본고는 개정 인코텀즈 2020의 시행에 즈음하여 먼저 기본적으로 인코텀즈란 무엇이며, 어떤 사항을 담고 있는지, 그 효력은 어떠한지를 살펴보고, 이어서 특히 인코텀즈 2020의 주요한 개정사항은 무엇인지를 살핀다. 이에 본고 제2장에서 인코텀즈의 의의와 주요내용을 고찰하면서 그 법적성격과 실무적용상 우선순위 및 인코텀즈의 주요한 규정사항과 비규정사항을 검토하고, 이어 제3장에서 인코텀즈 2020의 주요한 개정사항으로 ① 개별규칙 내 조항순서 변경, ② CIP 매도인의 최대 부보의무화, ③ FCA상 본선적재표기 선하증권에 관한 규정의 신설, ④ DAT에서 DPU로의 명칭변경, ⑤ 매도인/매수인 자신의 운송수단에 의한 운송의 허용, ⑥ 운송/비용조항에 보안관련의무 삽입 등을 고찰한다. In many contracts for international sale of goods, Incoterms, the uniform rules, along with the CISG, govern the legal relationship between the parties to the contract. Under Incoterms rules, sellers of goods bear risks until goods are delivered, and buyers bear risks from the time they are delivered. Likewise under Incoterms rules, sellers bear all costs rlating to the goods until they are delivered, and buyers bear all those costs from the time they are delivered. This principle determines what risks and costs each party bears between the seller and the buyer, and in this sense, Incoterms are the trade terms that define the delivery of goods, the transfer of risk and the allocation of costs between the seller and the buyer. The most important change in Incoterms 2020 is a re-ordering within the Incoterms rules in order to give the points of the delivery and the risk between the seller and the buyer, which is intended to steer users towards the right Incoterms rule for their sale contract. Substantial changes made to the Incoterms 2010 rules in the Incoterms 2020 rules includes, among other things, (i) in FCA rule, provision on bills of lading with an on-board notation is newly added, (ii) the level of insurance cover in CIP is now different from that in CIF, (iii) now under Incoterms 2020 sellers and buyers are allowed to arrange for carriage with their own means of transport in FCA, DAP, DPU and DDP. Externally, Incoterms 2020 has significant changes in the order of its provisions (except for A1/B1) compared to Incoterms 2010. This change is, among other things, to help readers to understand Incoterms well by placing important provisions such as provisions on delivery and risk transfer ahead and placing relatively less important provisions behind them. However, it can be said that Incoterms 2010 and Incoterms 2020 do not differ significantly in terms of content, given that such external changes do not result in changes in real content. In short, this revision to Incoterms 2020 is seen to have resulted in very large cosmetic changes whit a few relatively small substantial changes. However, the re-ordering within the Incoterms rules is intended to help the readers understand the Incoterms accurately, which is, in fact, very important. It is only when the Incoterms rules are correctly understood and used in practice that Incoterms can play its role properly, which is why Incoterms exists. In the future, I hope that the readers accurately understand the purpose of these revisions and properly use Incoterms in practice.

[第1編 國際賣買]美國契約法하에서 소위 “쉬링크랩라이센스” 契約에 관한 一考察

허해관(Hur Hai Kwan) 한국무역상무학회 2003 貿易商務硏究 Vol.20 No.-

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certainprocedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.

국제물품매매에서 사후송금방식에 의한 대금지급

허해관(Hai-Kwan Hur) 한국무역학회 2023 貿易學會誌 Vol.48 No.6

This paper discusses issues concerning the buyers’ payment of price of goods by way of an open account. First it defines the concept of the open account and examines the issues regarding performance and non-performance of payment obligation by the buyer who pays by way of open account. The issues here include the amount and time of payment and the imputation of payments. Nextly, this paper examines issues on the off-set which can be used by the buyers and, in effect, reduces the payment amounts.

국제물품매매협약상 위험부담의 의의와 고려요소

허해관(Hai-Kwan Hur) 한국무역학회 2008 貿易學會誌 Vol.33 No.2

國際物品賣買契約에 관한 UN協約의 컴퓨터 소프트웨어去來에의 適用과 限界에 관한 硏究

허해관(Hai-kwan Hur),임목삼(Mok-sam Lim) 한국국제상학회 2003 國際商學 Vol.18 No.4

Today, computer software is one of the important foundations for the information industry. Software has been being delivered via the Internet, mass-produced and delivered on a disk, or custom designed for a particular party, with which both national and international legal community face new software challenges, including the problem that computer software cannot easily be categorized as goods or services. So, the legal community struggles how to fit software into the existing legal structures. Various domestic laws are not treating electronic software consistently. Depending on the jurisdiction, the same software is treated as the sale of goods, or the providing of services. In international ground, this results in the question whether the 1980 United Nations Convention on Contracts for the International Sale of Goods ("CISG") can apply to international software transactions. The issue herewith concerns: (i) whether software can be regarded as the "goods" under the CISG., and (ii) should all software be treated the same regardless of the means of delivery? This article examines the application of CISG to software transactions and its limits. Following the Section I of Introduction, Section II overviews the provisions in CISG concerning its application to the software transactions. Section III examines. comparatively how the German and the U.S. domestic contract law are treating software transactions. Section IV, particularly according to Article 7(1) of CISG that requires an autonomous uniform interpretation, discusses the applicability of CISG to the international software transactions and addresses the limits of such application, followed by Section V that summaries and concludes this article.

어음을 이용한 포페이팅의 법적 원리

허해관(Hur, Hai Kwan) 한국무역상무학회 2009 貿易商務硏究 Vol.43 No.-

This paper sees some legal phases of the forfaiting transactions performed by using bills of exchange (drafts) or promissory notes. It focuses on the issues of the endorsement without recourse and the aval under the Korean statute for such negotiable instruments which is enacted by succeeding to the Convention Providing a Uniform Law For Bills of Exchange and Promissory Notes (Geneva, 1930) of the League of Nations. This paper purposes to give basic legal guides for forfaiting participants in order for them to be able to prevent and solve some problems caused by lack of understanding for relevant rules of law. Forfaiting is a useful technic as it provides financing for international export businesses by enabling forfaiters to discount future payment obligations on non-recourse basis. It gives benefits to exporters by removing political, transfer and commercial risks of importers or their country. Also it protects exporters from the risks of the increase of interest rates and the fluctuation of exchange rate as well. In traditionally normal forfaiting transactions, exporter of goods generally takes promissory notes or accepted drafts from importers in payment for the price of goods. Further, when the exporter is not comfortable with the importer's credit or is not confident whether the importer will pay the accepted drafts or the promissory notes as they come due, the exporter nomally requires the importer to make the importer's bank (avalizer or guarantor) add an aval, which is made by the written expression of intention, the words of "per aval", and the guarantor's signature on the draftsor promissory notes. The exporter endorses without recourse to transfer the drafts or the promissory notes to the forfaiter, typically a bank, who purchases the drafts or the promissory notes without recourse.

해상송부매매에서 국제매매협약상 매도인의 서류적합의무에 관한 일고찰 - 선하증권을 중심으로

허해관(Hur Hai Kwan) 한국무역상무학회 2008 貿易商務硏究 Vol.37 No.-

  Bills of lading are crucial in international sales on shipment terms since they guard buyers against loss of or damage to the goods in transit by giving them the rights against carriers. A bill of lading, as document of title, gives the buyer the right to demand physical possession of the goods from the carrier and enables the buyer who is in possession of damaged or short-delivered goods to sue the carrier. In this context the buyer in sales on CIF or CFR terms or FOB terms with additional services benefits from the bill of lading which functions as a receipt of goods and a evidence of the terms of the contract of carriage.<BR>  Protection of such buyer"s interests can be provided in the sale contract through appropriate express or implied terms on the seller"s documentary obligations: Which transport document, a bill of lading or a sea waybill, is required? Who should be named as the consignee in the transport document and, in case of bill of lading, by whom should the bill be endorsed? What should be stated in the bill of lading for the quantity of the goods? How about a bill of lading that contains so called “unknown clause”? How many bills of lading for the entire contract goods should be tendered? Can a bill of lading stating that the goods have been shipped in apparent good order and condition also state that the goods were damaged after shipment? This paper seeks to provide answers for these particular questions.

國際電子情報去來에 관한 立法動向

허해관(Hur Hai Kwan) 한국무역상무학회 2004 貿易商務硏究 Vol.23 No.-

This paper focuses on two recent legislative developments in electronic commerce: the "Uniform Computer Information Transactions Act" ("UCITA") of USA and the "preliminary draft convention on the use of data message in [international trade] [the context of international contracts]" ("preliminary draft Convention") of UNCITRAL. UCITA provides rules contracts for computer information transactions. UCITA supplies modified contract formation rules adapted to permit and to facilitate electronic contracting. UCITA also adjusts commonly recognized warranties as appropriate for computer information transactions; for example, to recognize the international context in connection with protection against infringement and misappropriation, and First Amendment considerations involved with informational content. Furthermore, UCITA adapts traditional rules as to what is acceptable performance to the context of computer information transactions, including providing rules for the protection of the parties concerning the electronic regulation of performance to clarify that the appropriate general rule is one of material breach with respect to cancellation (rather than so-called perfect tender). UCITA also supplies guidance in the case of certain specialized types of contracts, e.g., access contracts and for termination of contracts. While for the most part carrying over the familiar rules of Article 2 concerning breach when appropriate in the context of the tangible medium on which the information is fixed, but also adapting common law rules and rules from Article 2 on waiver, cure, assurance and anticipatory breach to the context of computer information transactions, UCITA provides a remedy structure somewhat modeled on that of Article 2 but adapted in significant respects to the different context of a computer information transaction. For example, UCITA contains very important limitations on the generally recognized common law right of self-help as applicable in the electronic context. The UNCITRAL's preliminary draft Convention applies to the use of data messages in connection with an existing or contemplated contract between parties whose places of business are in different States. Nothing in the Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate or false statements in that regard. Likewise, nothing in the Convention requires a contract or any other communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract to be made or evidenced in any particular form. Under the Convention, a communication, declaration, demand, notice or request that the parties are required to make or choose to make in connection with an existing or contemplated contract, including an offer and the acceptance of an offer, is conveyed by means of data messages. Also, the Convention provides for use of automated information systems for contract formation: a contract formed by the interaction of an automated information system and a person, or by the interaction of automated information systems, shall not be denied on the sole ground that no person reviewed each of the individual actions carried out by such systems or the resulting agreement. Further, the Convention provides that, unless otherwise agreed by the parties, a contract concluded by a person that accesses an automated information system of another party has no legal effect and is not enforceable if the person made an error in a data message and (a) the automated information system did not provide the person with an opportunity to prevent or correct the error; (b) the person notifies the other party of the error as soon as practicable when the person making the error learns of it and indicates that he or she made an error