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A holder in due course under the Uniform Commercial Code (hereinafter, “UCC”) § 3-302 is a person who acquires a negotiable instrument for value, in good faith, without notice that it is overdue, dishonored, or that any person has any claim or defense, and the holder in due course is protected by UCC § 3-305 from most claims and defenses. Through this protection of the holder-in-due-course rule, however, in the structure of the home mortgage lending market, predatory lenders have been able to avoid the risk of harm created by mortgage borrowers, and investors in the securitization market have been able to assign almost all such risk to the homeowners who are the victims of the predatory lenders’ practices. This article raises a fundamental policy question: is there reason to support the continuing availability of the holder-in-due-course protection for assignees of home mortgage notes in the U.S.? The answer can be approached form many perspectives, including historical, economical, and political. This article approaches the answer form the historical perspective. In order to find some new suggestions for the Korean legal regimes and relevant studies, first of all, this article reviews the legislative history of the holder-in-due-course rule and the underlying concept of negotiability under UCC. Additionally, this article analyzes the legal changes regarding the protection afforded to holders in due courses in consumer goods transactions and in estate transactions. Then, this article comes to the conclusion that the policy justifications, the parties. and the market circumstances for negotiable instruments have changes, therefore, Korea needs deeper studies on the holder-in-due-course rule to reflect the reality.

It is clear that establishment of the movable secured transactions law made a progress by resolving problems related to double transfer or Bona Fide Acquisition, which resided in movable security by means of transfer. Though, due to the characteristics of liquidity of movables, it is still unknown what impact the above law would bring. Hence, this study pointed out several problems and suggested solutions for them in order to enhance effectiveness of the movable secured transactions law. First of all, Article 32 of the movable secured transactions law stipulates Bona Fide Acquisition of a secured object (security or collateral), and this wcquestablished to protect transaction safety against changes in real rights over movables. However, since such a case in which the matter of Bona Fide Acquisition arises in respect of the above law can't be supposed, I think that this Article is an error in the process of legislation of the law. Thus, I think that this Article should be omitted. Then, transaction safety could be a problem, and, uespecially, it should be assured that an assignee of inventory can buy such movables that are free from security rights. As a solution for this, phe pr legislation, not interphetation, should be suggested to enhance effectiveness of the above law, and this study suggests that it be stipulated for transaction safety that no one can oppose to an assignee who has acquired a secured object by making payment of proper amount through process of normal business operation in case of setting up inventory as collateral. Also, in relation to surrogation, I absolutely agree to expansion of objects of surrogation for the purpose of enhancement of validity of security right holders. But, in case of inventory, movables as security object have the characteristics of inflow-outflow, and it can be needed to determine movables as security object when there arise certain reasons. Lastly, in relation to expansion of personal application range of the movable secured transactions law, UCC (the United States Uniform Commercial Code), the model law of the above-mentioned law, doesn't limit the range only to corporations. Also, I don't think that it's right to limit personal application range when considering the fact that the above law was legislated for individuals who need to set movables as security object to facilitate their, common people's, finance, and the current situation of company name registration. In conclusion, this study suggests some legislative supplements such as establishment of measures to secure transaction safety, determination on the object as a solution for creditors to collect debts and permission for individuals to use this system in order to enhance effectiveness of the above law.

In 2003, the Uniform Commercial Code(UCC) which is a kind of model law to unify commercial law between several states in US was amended to use electronic document of title including bill of lading. It is the second following the Australia legislation in 1996. Also, the Korean government amended Commercial Act and made the Presidential Decree for using electronic bill of lading in 2008. In this paper the authors reveal the characteristics of the clause of UCC for electronic bill of lading. The characteristics of the clause are on the technical neutrality of the signature, the possibility of reissuance in alternative medium, and adoption of the concept of "control." It helps to suggest some implications for Korean government authority. The authors suggest the amendment of the Presidential Decree to the Korean government authority to use additionally digital signature authorized by non Korean government such as VeriSign. It will activate the use of electronic bill of lading issued by Korea repositary out of Korea.

In 2003, the Uniform Commercial Code(UCC) which is a kind of model law to unify commercial law between several states in US was amended to use electronic document of title including bill of lading. It is the second following the Australia legislation in 1996. Also, the Korean government amended Commercial Act and made the Presidential Decree for using electronic bill of lading in 2008. In this paper the authors reveal the characteristics of the clause of UCC for electronic bill of lading. The characteristics of the clause are on the technical neutrality of the signature, the possibility of reissuance in alternative medium, and adoption of the concept of "control." It helps to suggest some implications for Korean government authority. The authors suggest the amendment of the Presidential Decree to the Korean government authority to use additionally digital signature authorized by non Korean government such as VeriSign. It will activate the use of electronic bill of lading issued by Korea repositary out of Korea.

Most legal systems provides the aggrieved buyer with a right to put an end to the contract. Unlike Civil Law systems, the right is rather complicated and uncertain in Common Law systems because they do not sharply distinguish between a refusal which amounts merely to a defence in the nature of the exceptio non adimpleti contractus, and one which is intended to abrogate the aggrieved party's obligations completely and to seek restitution of what he has already performed. That is, they do not draw any sharp distinction between the right of rejection or revocation and the right to put an end to the contract. This explains why the right to put an end to the contract under Civil Law systems are often compared with the right of rejection or revocation under Common Law systems in most academic papers. Having said that, this article describes and analyzes in detail the relevant UCC rules to the buyer's right of rejection and revocation, particularly the rules on the requirements for the right of rejection or revocation. This is for the purpose of providing legal advice to our sellers residing either in U.S.A. or in Korea who plan to enter into U.S.A markets and take academics' interest in the buyer's right which is deemed to be unique compared to the Civil Law systems. In addition, the study attempts to compare the rules as to the right of rejection and revocation under the UCC with those of English law which are stipulated mainly in the Sale of Goods Act (1979) in a statutory form. This may help one better to understand the rules of the UCC which are mostly originated with English law and to find in what way the rules of the UCC depart from those of English law.

A very enormous risk is involved in international trade because a large amount of money is involved in and there is a gap between delivery of agreed goods and payment. Hence seller and buyer tend to select payment method of Letter of Credit(L/C) that links documentary draft with payment undertaking of banks. As we know, the letter of credit was developed by commercial needs. But As times have gone by, many principles arouse. The autonomy, abstract and strict compliance priniciple underlie L/C. so, L/C functions as well under these principles. But As there is no rule but no exception, in a given case exception from application of these principles is allowed. This is so called “fraud exception” or “fraud rule.” Because the fraud exception rule constitutes contracting out an application of basic principles, this rule should apply restrictively and in many authorities a court do not apply this rule to nominated bank, confirming bank, and bona fide holder of draft even if fraud is involved in L/C transactions. If not, we lose a lot of benefits from the credit as valuable commercial device through reservation of these principles to take a few benefits. So, We must bear in mind that the fraud exception rule should apply restrictively. Hence, this study analyzes condition of application and exception from application of fraud exception rule in view of Uniform Commercial Code Article 5-109(a) this study.

The American Law Institute and the National Conference of Commission on Uniform State Laws amended Article 2 of the Uniform Commercial Code in 2003. One of the most urgent and challenging tasks the sponsoring organizations undertook in amending the Sales Article of the Code was to revise UCC section 2-207, the “battle of the forms” section that will live in infamy. In revising the original statute (hereinafter referred to as UCC-O section X-XXX), the drafters decided to move the rule stated in UCC-O section 2-207(1) to revised section 2-206(3) (hereinafter referred to as UCC-R section X-XXX), so that all of the standards governing formation of a contract for sale by acceptance of an offer are now collected in UCC-R section 2-206. In the proposed amendment of Article 2, a revised section 2-207 replaces subsections (2) and (3) of UCC-O section 2-207. The sole province of UCC-R section 2-207 is to identify the terms of a contract for the sale of goods. The language of UCC-R sections 2-206(3) and 2-207 and the proposed Official Comments to those sections improves upon the language of UCC-O section 2-207and its Official Comments. Adoption of the revised statute will make much of the case law and scholarly commentary interpreting the original statute obsolete. Despite the improvement, however, the language of UCC-R sections 2-206(3) and 2-207 still does not provide sufficiently clear and thorough guidelines for resolving the questions of sales contract formation and content that those sections address. This article provides a overview of the relevant original statutes in a critical manner and then provides an evaluation of revised UCC sections 2-206(3) and 2-207. Part of the evaluation identifies the many ways in which language of the revised statutes improves upon the language of their predecessor. The evaluation also suggests how the text of UCC-R sections 2-206(3) and 2-207 might be further revised or interpreted in order to provide needed guidance when the revised statute are adopted. In addition, this article provides a short comment of the equivalent sections in both UN Convention on the Contract for International Sale of Goods (CISG) and UNIDROIT Principles on International Commercial Contract (PICC) as to the changed acceptance

The Uniform Commercial Code (UCC) sets the standards of good faith in a commercial transaction for the sale of goods. With every sales contract, there is an implied obligation for both the seller and the buyer to negotiate the contract and perform under the terms of the contract in good faith. The agreement between both parties and the customs in the industry determine how the good faith standard should be applied to a particular transaction. Generally, the meaning of good faith, though always based on honesty, may vary depending on the specific context in which it is used. A person is said to buy in good faith when he or she holds an honest belief in his or her right or title to the property and has no knowledge or reason to know of any defect in the title. In section 1-201 of the UCC good faith is defined generally as "honesty in fact in the conduct or transaction concerned." Article 2 of the UCC says "good faith in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade." The sales contract will generally determine which party is required to perform first. This provision helps to determine if the buyer or the seller is in breach of the agreement due to failing to perform as stated by the contract. Either the seller must deliver the items before the buyer is required to accept and pay or the buyer must pay for the items before the seller has the duty to act in good faith and deliver the items in a reasonable manner. If the contract does not specifically define who is required to perform, industry customs and fair trade may determine what is acceptable for the transaction. Under the UCC, the buyer is required to pay for the goods when they are delivered, unless the contract states otherwise. Therefore, the UCC imposes an obligation of good faith on the performance of every contract or duty under its purview. The law also generally requires good faith of fiduciaries and agents acting on behalf of their principals. This article discusses problems of the principles of good faith under the UCC. Specifically, this paper focuses on the interpretation of UCC sections and analysis of various cases. By comparing, also, UCC and Korean law, the paper proposes some implications of good faith issues for Korean law.

본 논문은 UCC상의 묵시적 보증과 관련하여, 그 규정체계 및 판례법상 형성된 법리의 전개과정들을 검토하였다. 특히 CISG상 물품적합성에 관한 판단기준과의 비교 검토를 통해, 양 법제의 유사점과 차이점을 규명해 보고자 하였다. 우선 UCC는 물품보증을 명시적 보증과 묵시적 보증으로 구분하고, 물품에 관한 묵시적 보증을 다시 상품성과 특별목적 적합성으로 구분한다. 여기서 UCC상 묵시적 품질보증에 대응되는CISG상의 규정은 제35조인데, UCC 제2-314조 및 제2-315조의 묵시적 보증은 CISG 제35조 제2 항 (a)와 (b)로 편제되어 거의 동일한 내용들을 담고 있다. UCC의 묵시적 보증법리는 CISG상 물품적합성의 객관적 판단기준을 구체화하였다는 점에서매우 중요한 의미가 있다. 이는 UCC가 적용된 판례법적 경향이 국제물품매매법의 조류를 반영하는 일정한 좌표로서 인식될 가능성이 있기 때문이다. 이러한 관점에서, 우리법상의 계약책임과 담보책임의 면면들을 재검토할 수 있는 제도적인 참고로서 UCC상의 보증법리를 활용할 수있을 것이다.

Purpose : The purpose of this paper is to introduce and analyze the implied warranty in the Uniform Commercial Code (UCC). Research design, data, methodology : This paper studies scopes, application, requirements of the implied warranty in UCC by analyzing articles and especially case law. The paper, also, studies the conformity of goods in CISG by comparing specifically UCC rules and cases. Results : The situations in which an implied warranty exists are laid out in UCC sect. 2-314 and 2-315. Warranties of merchantability are implied in any sale as long as the seller is in the business of selling the types of goods in question. In order to be considered merchantable, goods must meet certain requirements. Also, Article 35(2) of CISG states standards relating to the goods' quality, function and packaging that, while not mandatory, are presumed to be a part of sales contracts. In other words, these standards are implied terms that bind the seller even without affirmative agreement thereto. Conclusions : This paper analyzes implied warranties of the UCC and conformity of goods of CISG by comparing both cases. Under both the UCC and the CISG, there is an underlying obligation of any seller to provide goods that are fit for their ordinary purpose and particular purpose.

If the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may reject the goods. This is so-called the perfect tender rule under the common law. Rejection of goods must take place within a reasonable time after their delivery or tender. Under the Uniform Commercial Code (UCC), however,the seller generally has a right to cure, or fix the problem, when the goods or delivery under a contract fails to meet the specified contract terms. The issue, in effect, is whether the injured party must mitigate its harm by continuing to deal with the breaching party. This paper analyzes how the UCC has attempted to treat seller's right to cure. Also, it intends to study on the American Cases which dealt with seller's right to cure under the section 2-508 of UCC. Comparing with CISG and Korean law, finally,it attempts to provide an academical implication.

미국 통일상법전 제2-725조의 현실성 있는 규율은 한국에 입법론 및 해석론적으로 시사하는 점이 많다. 민법 제582조가 기산점을 하자발견시로 늦추되 짧은 권리행사기한을 정하는 것과 반대로, 통일상법전 제2-725조는 기산점을 원칙적으로 인도시로 앞당기되 권리행사기간을 넉넉히 정한다. 한편, 1년으로의 단축합의도 허용하고, 장래의 작동에도 보증책임이미치도록 명시한 경우에는 기산점을 하자발견가능시로 늦추어, 사안유형에 맞게 유연하게대응한다. 민법 제582조의 해석론이 무리하게 5년도 아닌 10년의 해제권 행사기간을 부여하는 것과 대조된다. 통일상법전 제2-725조의 원래 규율이든, 이를 수정한 사우스 캐롤라이나주법이든, 권리행사기한협약과 비슷한 점도 장점이다. 일원적 규정체계를 따르면서도 실용적인 통일상법전 제2-725조는 한국에 좋은 입법모델이 될 수 있다. 통일상법전 제2-725조의 2003년 개정본은 결국 채택하려는 주가 없어 폐기되었지만, 하자발견가능시에 기산하는 단기의 제소기한과 위반시(인도시)에 기산하는 장기의 제소기한을함께 정하는 새로운 규율방안을 제시한다. 즉, 하자의 발견가능시를 원칙적 기산점으로 하여 앞당기고 제소기한은 1년으로 줄여 민법 제582조와 약간 비슷한 규율을 도입하되, 인도시에 기산하는 5년의 최장기간을 정하여 균형을 맞추려 했다. 한국법을 최소한으로 개정하려면 2003년본을 본받을 수 있다. 즉, 재판외 권리행사기한을 대신하여 위반시에 기산하는5년의 장기기한을 도입하는 것으로도 이익균형을 크게 개선할 수 있다. 해석론으로는, 제582조의 6개월의 기한을 제소기한으로 해석하되, 그 기한 내에 재판외권리행사가 있으면 민법 제174조를 유추적용하거나 적용하여 6개월만큼 제소기한이 연장된다고 해석하는 방안이 어떨까 한다. 매수인에게 덜 가혹하게 하려면, 민법 제174조의 유추적용에 의한 제소기한 연장의 횟수에 제한을 두지 않는 해석방안을 생각할 수 있다. 두 해석안 중에서 이론적으로 매끄러운 것은 전자이지만, 거래계의 현실을 고려하여 정할 문제이다. 후자를 따를 때에는 최장의 제소기한도 정해야 한다. 제582조는 최장기간을 정하지 않지만, 채권의 소멸시효기간을 유추적용하여 보충하면 된다. 이 때, 무조건 민법 제162조 제1 항에 따라 10년으로 해석할 것이 아니라, 상사매매의 경우에는 5년(상법 제64조)으로 해석해야 한다. 끝으로, 2003년본 제2-725조 제2항 c목을 본받아, 매도인의 구제약속이 있으면 구제약속의 이행기로 권리행사기한의 기산점을 연장하는 것이 타당할 것으로 생각된다.

Section 2-725 of the Uniform Commercial Code contains a realistic and functional rules for the limitation period in a sale of goods, in exclusion of any concurrence of liability. Section 2-725 can be a good reference point, in reshaping Article 582 of the Korean Civil Code, either legislatively or by interpretation. Art. 582 provides for a short limitation period and tackles this problem by postponing the time limit from starting to run until the defect is discovered by the buyer. In contrast, Section 2-725 strikes a better compromise, by providing for a sufficiently long period of limitation which begins to run on the day of delivery. Section 2-725 is also flexible in allowing an agreement to shorten the period of limitation to one year, and delaying to trigger the period of limitation until discovery where warranty was explicitly extended to future operation. The similarity with the United Nations Convention on the Limitations Period in the International Sale of Goods is another merit. The 2003 revised version of Section 2-725, though withdrawn later, is also exemplary. The paragraph 1 adopts a combination of two rules of limitation period: the shorter period of one year beginning to run from discovery, and the longer period of five years starting to run on the day of breach, i.e. delivery. Art. 582 could be significantly improved by dispensing with interpreting the six months’ time limit as one for “extrajudicial exercise” of the buyer’s remedy, and adopting the latter part of Section 2-725(1) as revised in 2003. Art. 582 may also be improved by interpretation. Perhaps a better interpretation would be to interpret Art. 582 as providing for a time limit to file a lawsuit, but to apply Art. 174 of the Korean Civil Code or apply it by analogy, so that the buyer’s timely extrajudicial exercise of their remedy would earn them a six month extension. An alternative solution, which may be less demanding for buyers, could be to allow repeated six-month extensions. But the latter solution needs to be matched by a longer time limit. It could be interpreted as ten years for non-commercial cases (Civil Code, Art. 162, para. 1), and five years for commercial cases (Commercial Code, Art. 64). Lastly, the seller’s promise to remedy the defect should also be given effect, as provided in the 2003 version of Section 2-725(2)(c).

Article 9 of the Uniform Commercial Code covers most aspects of the creation, perfection and enforcement of a security interest in almost any kind of tangible or intangible personal property and fixtures, given by a debtor to a secured party to secure the performance of an obligation of almost any kind. The property in which a security interest is to be created, the collateral, may include property owned when the security agreement is entered into or property to be acquire thereafter. The obligation secured will usually be one incurred to acquire the collateral or one incurred through the contemporaneous, past, or future borrowing of money. Although a few of the rules vary with the nature of the debtor, generally one set of rules governs all security transactions. It is sometimes alleged that, through the combined effect of a number of provisions, article 9 permits the debtor to create a floating lien, tying up all of this assets with one creditor and hampering his ability to get credit from anyone else. The lien floats from one bit of collateral to another, and may first secure one debtor and then another. The provisions of article 9 about which discussion of the floating lien centers include those which permit the debtor (ⅰ) to hypothecate any or all of his personal property, including after-acquired property, the lien on the property following over into products into which it is wrought or commingled, or proceeds resulting from its disposition; (ⅱ) to give present security for future advances; (ⅲ) to use with respect to any kind of collateral the notice filing heretofore restricted to inventory and accounts receivable; and (ⅳ) to exercise such dominion or contro over the collateral as may be agreed upon between the parties.

The seller may take a warranty with respect to the goods. If they are not as warranted, they may be held liable for the breach of warranty. Even when they has not made a warranty, the law will in some instances hold them responsible as though they had made a warranty. An express warranty is a part the basis for the sale. That is, the buyer has purchased the goods on the reasonable assumption that they were as stated by the seller. When the buyer intends to use the goods for a particular or usual purpose, as contrasted with the ordinary use for which they are customarily sold, the seller makes an implied warranty that the goods will be fit for the purpose when the buyer relies on the seller's skill or judgment to select or furnish suitable goods, and when the seller at the time of contracting knows or has reason to know the buyer's particular purpose and his reliance on the seller's judgment. A merchant seller who makes a sale of goods in which he customarily deals makes an implied warranty of merchantability. The Uniform Commercial Code expressly abolishes the requirement a privies to a limited extent by permitting a suit for breach of warranty to be brought against the seller by members of the buyer's family, his household, and his guests, with respect to personal injury sustained by them. Apart from the express provision made by the Code, there is a conflict of authority as to whether privies of contract is required in other cases, with the trend being toward the abolition of that requirement. At common law the rule was that only the parties to a transaction had my rights relating to it. Accordingly, the buyer could sue his immediate seller for breach of warranties. The rule was stated in the terms that there could be no suit for breach of warranty unless there was a privies of contract. The code expressly abolishes the requirement of privies to a limited extent by permitting a suit for breach of warranty to be bought against the seller by members of the buyer. Apart from the express provision made by the Code, there is a conflict of authority as to whether privies of contract is required in other cases, with the trend being toward the abolition of that requirement.

본 논문에서는 UCC상의 구두증거배제법칙의 적용과 관련한 이론 대립의 초점을 중심으로 전반적인 학설⋅판례 분쟁을 구체적으로 검토하였다. 구두증거를 배제하는 법리가 제도적으로 수용되는 과정을 시작으로, UCC 법칙을 개관하고 이에 대한 적용상의 쟁점사항들과 존폐론 및 법칙의 역할적 측면들을 살펴보았다. 구두증거배제법칙에 관한 이론적 대립은 양비론적 성격을 지닌 것으로, 어느 일면만이 옳다고 볼 수는 없을 것이다. 그러나 본 논문에서는 다음과 같은 이유로 구두증거배제법칙의 사회적 역할을 재확인하고자 한다. 우선, 구두증거배제법칙의 법적 역할이다. 이는 ① 사기나 위증과 같은 계약의 일방적 변경을 제한하여 당사자의 계약상 권익을 보호하는 법익보호적 기능, ② 재판과정에서의 사실확정을 위한 증거선별을 유도하는 소송절차적 기능, ③ 당사자간 협상과정에서 제기되는 다양한 합의들을 최종적 의사표시의 문서형태로 정리하여, 당사자의 궁극적인 의도를 해명하는 계약해석적 기능, ④ 최종적 합의서면의 작성을 통해 거래를 증진시킴으로써 궁극적으로는 당사자들의 무분별한 소송을 막는 거래보장적 기능이다. 다음으로, 구두증거배제법칙의 경제적 역할이다. 구두증거배제법칙은 당사자 또는 법원에서 외부증거를 찾고 심사하며 판단하는데 들어가는 일체의 거래비용을 효과적으로 절감하는 기능을 갖고 있다. 나아가 구두증거배제법칙과 같은 일정한 규제법리의 파급효과가 점진적으로는 거래전반의 비용을 절감하고 궁극적으로는 사회 전체의 경제적 효율을 달성한다는 것이다. 우리법상으로도 구두증거배제법칙과 유사한 기능을 하는 처분문서의 증명력이라는 법리가 존재한다. 물론 ① 구두증거배제법칙과는 달리 절차법적 원칙이라는 점, ② 증거의 제출 범위에 있어 엄격한 제한을 받는 구두증거배제법칙과는 달리 반증이 허용되는 한 자유심증에 따른 증거제출이 인정된다는 점에서 처분문서의 증거력은 법칙과는 본질적인 차이점이 있다. 다만 여기서 한번 생각해 볼 수 있는 점으로는, UCC의 경우에는 상관습 요소들을 중시하여 이를 법칙의 명시적인 예외로 규정하였다는 점이다. 그렇게 함으로써 법관의 판단에 확정적인 경험칙을 부여하고 일정한 비용절감의 효용도 거두고 있는데, 명문의 상관습 정의 조항이 없는 우리 상법상 향후의 발전적 과제라는 측면에서 일정한 시사를 줄 수 있다고 본다.

The parol evidence rule disallows evidence to be admitted to contradict, vary, add, to or subtract from the terms of a written contract or a part of a contract that has been completely recorded in writing. The rule is intended preserve the integrity of a written agreement and allow it to be interpreted using well-established principles of contractual construction, which promotes certainty in resolution of legal disputes, without interference from pre-contractual negotiations, draft contracts and other extrinsic matter. Accordingly, where party looks to admit evidence to do so, it is not relevant and is likely to be excluded from the evidence considered by the court. Under Section 2-202 of Article 2 of the Uniform Commercial Code(U.C.C.), parol evidence cannot contradict a writing intended to be the final expression of the agreement integrated but may explained or supplemented by (a) a course of dealing or usage of trade or course of performance, and by (b) evidence of consistent additional terms unless the writing was also intended to be a complete and exclusive statement of the terms of the agreement. This paper looks at how the U.C.C. and the courts have attempted to define parol evidence rule, the difficulty of consensus on its application and focuses on the interpretation of UCC sections and analysis of various cases.