정기용선계약에 관한 입법론적 연구

Abstract

Korean law has been rarely adopted as governing laws in settlements of disputes in shipping business even by their domestic shipping companies notwithstanding Korea is one of major shipping countries in the world. In fact, shipping companies usually agree to English law as a governing law of their shipping contacts regardless of their locations and nationalities.

One of main reasons for this is that most of standard forms of shipping contracts are drafted on the basis of English common law whereas Korean law is based on civil law system. Accordingly, constructions on certain clauses of standard forms of shipping contracts by Korean law would not be more effective and practical than the construction by English law. Another main reason is that English law has extensive case laws on shipping disputes which have been accumulated for centuries when England was a superpower shipping country. As a result, parties to shipping contracts can foresee their legal position on contracts with certainty under English law which makes their business stable in terms of legal risk. For these reasons, English law has been chosen as governing law by parties.

Thus, there have been not many disputes on shipping contracts such as time charterparties under Korean law and this gives less chances to Korean law society to have extensive experiences. This again makes Korean law less preferred by shipping companies who has no alternative but to settle their disputes under English law in a distance country with heavy burden of expenses and language obstacles.

In view of the above mentioned, it is necessary and important to study time charterparty in terms of legal nature, legislations of other countries and Korean law and English law comparisons on construction of a standard form of time charter party(“New York Produce Exchange Form 1946”). On the basis of results of this study, it would be possible to set up more practical Korean legal fabric in respect of time charter to meet the country's demand as a major shipping country. For this, current articles relating to time charter in Korean commercial code shall be reviewed in order to see whether it is necessary to amend or make additional new articles. In the course of such study, it would be useful to take account of viewpoint of English law on construction of time charterparty since English law is most preferred governing law in time charter in the world.