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자료유형
학술저널
저자정보
저널정보
법무부 국제법무정책과 통상법률 통상법률 제56호
발행연도
2004.4
수록면
108 - 135 (28page)

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The principle of good faith has been described vaguely fundamental principles of contract law, as a phrase with no general meaning but which operates to exclude various forms of bad faith, and as a discretionary standard preventing parties recapturing opportunities foregone on contracting. Good faith has also been compared with unconscionability, fairness, fair conduct, reasonable standards of fair dealing, decency, reasonableness, decent behavior, a common ethical sense, a spirit of solidarity, community standards of fairness and honesty in fact, indicating that good faith is an extremely versatile concept. Within the context of the CISG, good faith is manifested in various forms. Good faith is a sense that parties to a contract for the international sale of goods are required to do all that is reasonable, and prohibited from doing all that is not reasonable, to ensure the contract remains on foot. This is consistent with the principle of contract continuance embodied within the CISG. The very nature of the CISG as a multilateral convention means that a uniform application of its provisions is crucial. This goal is reflected in Art.7. PICC were developed on a broad comparative law basis, the final text representing features common to some of the world's legal systems. The principles serve various functions, one such function being to act as a guideline for interpretation and filling gaps in CISG. PICC supports the imposition of a positive obligation of good faith on contracting parties. It provides that each party must act in accordance with good faith and fair dealing in international trade(Art. 1.7, (1).). The concept of good faith and fair dealing does not operate merely as a rule of interpretation of each PECL Article. The duty of good faith, as this is embedded in PECL Article 1.201, is mandatory on the parties. PECL Article 1.201 imposes upon each party a positive duty of good faith and fair dealing in exercising its rights and performing its duties under the contract. The PECL Comments to Article 1.201 not only refer to good faith as a basic principle running through the Principles, but also expressly state that good faith and fair dealing are required in the formation, performance and enforcement of the parties' duties under a contract, and equally in the exercise of a party's rights under the contract.

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