신의성실의 원칙에 관한 기능주의적 해석

Abstract

Every culture introduces the notion of good faith into the legislation dealing with one form or another of it. The functional importance of good faith in the national level is also reflected in CISG. CISG Article 7 adopted good faith doctrine which serves literally as an interpretative principle to the Convention. However, the compromise of different legal families and methodologies made the interpretation of its provisions uncertain and Article 7(1) particularly controversial thereby causing homeward interpretation and inconsistent case law among courts, tribunals and scholars. One of the contested issue is whether the principle of good faith may be applied directly to the rights and obligations of contracting parties. In this respect, the value of the comparative law method especially for Article 7 cannot be overestimated although it needs great caution because the solution for good faith issue in CISG must be acceptable in different legal systems with different legal traditions. Therefore this dissertation focuses on the functional equivalents of good faith embedded in CISG as a whole and try to approach functionally to the meaning and role of its own good faith based on the conclusion drawn by the comparative analysis on civil law and common law concept of good faith with some thoughts on the most fertile agents in the development of Roman contract law, 'bona fides'. The principle of good faith rooted in ancient Roman legal tradition and Greek philosophy is considered in most modern civil law systems, a general principle of contract and a central feature of the civil law traditions. Furthermore, some civil law systems has come to consider the notion of good faith as one of the most important legal principle of private law in general as well as contract law. Indeed, most civil codes prescribe the notion of good faith including the well-known German Civil Code Section 242 in which the concept has been regarded as an overriding legal principle as referenced in a vast body of cases and doctrines. The legal concept of good faith originated from Roman civil procedure where the trier of facts, so called iudex, were directed by a standard bona fides clause "quidquid...dare facere oportet ex fide bona" in the Praetor's formula. This standard bona fides clause was known as the exceptio doli and the purpose of the clause was to prevent the plaintiff from taking advantage of rigorous nature of actio stricti iuris. The instruction of the formula in iudicia bonae fidei directed the iudex to ascertain whether the plaintiff had done something in bad faith and the iudex had to determine based on equitable nature of bona fides. Therefore the meaning and role of good faith in Roman law was judicial and remedial one allowing the judge to decide the case in equitable and reasonable manner. In this respect, the functional nature of good faith derived from judicial principle of interpretation which deals with rights and obligations of the contracting parties. The functional nature of good faith is embedded in CISG Article 7 as well. The uniform law project of UNIDROIT for international sale of goods started in 1926. The resolution to develop a uniform international sales law was passed in 1978 and it resulted in CISG or 1980 Vienna Convention, the Convention on Contracts for the International Sale of Goods, that took effect in 1988. The purpose of the Convention as stated in the Preamble is to "contribute to the removal of legal barriers in international trade and promote the development of international trade" through "the adoption of uniform rules which govern contracts for the international sale of goods" and taking into account the different social, economic and legal systems. Indeed, the Convention has provided unified framework of statute law to meet the legal needs of international trade or sales transactions and also provided a good mechanism for the courts and arbitration tribunals around the world to resolute trade disputes in an equitable manner. Today the Convention came to be considered and referred to as the most successful international treaty. However, the substantive contents of the Convention could only be adopted by compromise among different legal families, particularly between civil law countries and common law countries. The compromise has been necessary in the process of legislation to obtain widespread acceptance from participants with heterogenous legal culture and it made the Convention a great success while predecessors of it had been unsuccessful, ie the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods. On the other hand, these compromises made one of the weakness of the Convention. Especially the compromise of different legal families and methodologies made the interpretation of its provisions in general and Article 7(1) particularly controversial thereby causing homeward interpretation and inconsistent case law among courts, tribunals and scholars. Further, Article 7 adopted autonomous principle of interpretation to warrant its international character and to meet the need to promote uniformity in its application. Accordingly and paradoxically, the compromising legislative character together with the autonomous principle of interpretation has been causing serious legal uncertainty in the interpretation of good faith of Article 7. Article 7(1) states that "in the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade." Article 7 good faith serves as an interpretive principle but in the normative respect the role and meaning of good faith is by no means clearly deduced. Various issues arise in connection with the requirement to observe good faith in international trade when interpreting the Convention, such as whether the notion of good faith is different from the traditional civil law concept of good faith which has been received directly from the concept of bona fides under ancient Roman law, whether good faith obligations extends to the legal relationships of the contracting parties or whether it applies only to the interpretation of the Convention, what is the meaning of the standard of good faith, whether the contested issue falls on the legal gap of the Convention and if that is the case how to fill the gap of the Convention. The problem of the interpretation of good faith within the Convention varies. The competing national approaches to good faith aggravates the variety because the difference exist between legal families or legal systems and even within the same legal family and single legal system. Particularly civil law and common law scholars had different opinions in the drafting stage of the Convention with regard to the legal implications of good faith. Of course the civil law scholars were of the opinion that the good faith is universally and traditionally recognized legal concept in contract law as well as in private law. So there seemed little harm in including the principle of good faith in the draft Convention. Further, many national codes contained good faith provisions dealing with one form or another of it which played an important role in the development of rules regulating commercial activity. Rather, it was considered that the extension of this provision into an instrument regulating an aspect of international trade was so valuable that deletion would open the Commission to the criticism that it opposed such principle when it was well recognized in public international law as well as in international trade regime. On the other hand, the common law scholars were of the opinion that the concept of good faith is simply a matter of moral exhortation and inherently embedded in all legal instruments therefore antithetical to the spirit of legal certainty in commercial contract law. There was no need for them to include the ambiguous concept of good faith in the Convention. However, legal uncertainties of the Convention centering on Article 7 good faith are contrary to the purpose of the Convention as stated in the Preamble to remove the legal barriers in international trade and promote the development of international trade. Further, legal uncertainty in connection with the role and meaning of good faith aggravates legal barriers and hinders uniformity in its application as a whole because the good faith provision belongs to general provisions of the Convention which has significant influence and importance in interpreting the Convention. In this vein, it cannot be overstated that there is a significant scepticism in connection with the normative effect of the Convention as a governing law for contracting parties in international trade at least in interpretation and application of good faith in Article 7. Therefore, this dissertation focuses on the functional equivalents of good faith embedded in CISG as a whole and try to approach functionally to the meaning and role of its own good faith based on the conclusion drawn by the comparative analysis on civil law and common law concept of good faith with some thoughts on the most fertile agents in the development of Roman contract law, 'bona fides'. Finally, functional interpretation of good faith in CISG will point out that indirect application of the notion of good faith in the form of implied terms to the contract relations may be harmonized with strict perspectives on Article 7 and try to deduce an autonomous and internal solution for the meaning and role of the Convention's own good faith, reasonableness.