한국해양대학교

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海上物件運送契藥의 權利行使期間에 관한 比較法的 硏究

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dc.contributor.author 최도수 -
dc.date.accessioned 2017-02-22T07:20:55Z -
dc.date.available 2017-02-22T07:20:55Z -
dc.date.issued 2014 -
dc.date.submitted 57042-05-01 -
dc.identifier.uri http://kmou.dcollection.net/jsp/common/DcLoOrgPer.jsp?sItemId=000002176285 ko_KR
dc.identifier.uri http://repository.kmou.ac.kr/handle/2014.oak/10669 -
dc.description.abstract A Comparative Study on Limitation period under Contracts of Carriage of Goods by Sea Choi Do-soo Department of Maritime Law Graduate School of Korea Maritime University Abstract Most of jurisdictions have their own limitation period system. The reasons for this policy will be as follows: first, the defendants should be protected against claims being made on them after a long period, during which they may have lost the evidence available to them to rebut those claims -
dc.description.abstract secondly, that claimants should be encouraged not to go asleep on their rights, but to institute proceedings without unreasonable delay. The limitation period related to the contracts of carriage of goods by sea under Korean Commercial Code(hereafter 'KCC') are to be construed as an 'exclusive period' so that the period, as a general rule, can not be extended or shortened by mutual agreement without any expressed allowing words in that law. Regarding contracts of affreightment which are usually evidenced by bills of lading or seaway bills, Article 814 of KCC clearly provides for 1 year of limitation period and extension of the time by agreement but does not mention the shortening of the period. Thus the shortening of the period by agreement may be null and void. This position can be also enhanced by Article 799 of KCC which provides that any attempt to reduce or exempts any obligation or liability of carrier in breach of contract shall be null and void, like Article 3. 8 of Hague/Visby Rules. In case of charterparties, KCC provides for 2 years of limitation period(actually 'exclusive period'). This period can be extended by agreement or shortened only if there is a clause in the contract allowing it. As regards multimodal transport, KCC basically accepted so called 'network liability system', by which the carrier shall take liabilities in accordance with the law to be applied in the particular stage where the damage arose(Article 816 ①). Therefore if the damage arose during a land carriage, Article 147 and 121 will be applied, which provide 1 year of "extinctive prescription" from the day on which the consignee takes delivery of the goods from the carrier. For sea carriage, Article 814 will be applied accordingly. When 'extinctive prescription' is applied, running of time may be suspended or stopped by meeting with some requirements prescribed in the Korean Civil Act, such as demand, attachment, provisional attachment or disposition, acknowledgment and acts of God etc. From the view point that an "extinctive prescription" has been recognized as a kind a legal disadvantage for the non-exercise of rights, if someone who has a right exercises it before expiry of the time limit, the period will be suspended because he exercised his right and has no reason to take such a disadvantage any more. In the above circumstances, there are several issue. One is related to the purpose of 1 or 2 years of exclusive period in contracts of sea carriage of goods. It is for the benefit of carriers by discharging them from all liabilities in a short period. Therefore it is necessary to consider to limit time extension by agreement to the parties. Though one of the reasons allowing the extension by agreement is to induce an amicable settlement between the parties without relying on legal steps, it may cause delay in handling the case and prevents early settlement of the case, contrary to the original purpose of the exclusive period and exposing carriers to unstable situations for a long time. Another issue is unification of legal nature on those 2 limitation periods when Article 816 of KCC is applied. When the damage occurs during the land carriage, it inevitably causes carriers to be exposed to unstable conditions for longer period of time than when the damage occurs in sea carriage. Therefore, when multimodal transport is concerned, current 'extinctive period' to be applied to land carriage needs to be changed to an 'exclusive period' to avoid any confusion from presence of different legal nature of land and sea carriage in the article. The other issue is concerned with limitation period under charterparties. A party to a charter has 2 year of exclusive period from redelivery (in case a demise charter, from delivery). It is quite different from English law, at which 6 year will be applied from the date on which the cause of action accrues. All terms and conditions of a charterparty are freely negotiated and fixed on a equal bargaining power between the parties. Thus, it is deemed as one of simple contracts under both English and Japanese law. Further, Shipownes and Charterers will not have any problem in collecting and keeping those evidences for many years. With the above facts in mind, Article 840, 846 and 851 under KCC which provide 2 year of 'exclusive period' in charterparties seem inappropriate. Therefore, it is necessary to follow a 5 year of extinctive period' as in Article 64 of KCC but running from at the time of breach of the contract. -
dc.description.tableofcontents 目 次 제1장 序論 1 제1절 硏究의 目的 1 제2절 硏究의 範圍와 方法 3 제2장 權利行使期間에 관한 一般論 6 제1절 序論 6 제2절 消滅時效 7 1. 權利行使期間 制度의 基源 8 2. 消滅時效의 意義와 效果 9 제3절 除斥期間 12 1. 意義 12 2. 消滅時效와의 差異 13 3. 除斥期間 完成의 效果 19 제4절 小結 19 제3장 國際協約과 國際規則上 權利行使期間 21 제1절 序論 21 제2절 國際協約上 提訴期間 22 1. 헤이그 規則 22 2. 헤이그 비스비 規則 25 3. 함부르크 規則 30 4. 로테르담 規則 34 제3절 國際規則上 提訴期間 38 1. 序論 39 2. FIATA 複合運送證券上 權利行使期間 40 제4절 小結 44 제4장 英國 海上物件運送契約法上 權利行使期間 47 제1절 序論 47 제2절 英國法上 提訴期間 49 1. 意義 49 2. 英國法律上 提訴期間에 관한 立法方式 50 제3절 提訴期間制限法과 海上物件運送法의 比較 51 1. 序論 51 2. 立法目的과 基本的 立法 態度 52 3. 提訴期間의 起算과 終了 53 4. 訴訟의 原因(Cause of Action) 55 5. 訴訟의 範圍 57 6. 期間의 延長과 短縮 58 7. 期間의 中斷/停止 61 8. 提訴期間 完成의 效果 63 9. 相計(set-off)와 反訴(counter claim) 64 제4절 小結 66 제5장 韓國 海商法上 權利行使期間 68 제1절 序論 68 제2절 個品運送契約上 權利行使期間 69 1. 個品運送契約의 意義 69 2. 權利行使期間의 本質 70 3. 除斥期間으로 解釋되는 경우의 法律效果 73 4. 立法的 補完 또는 考慮事項 74 제3절 陸上運送契約上 權利行使期間 77 1. 序論 77 2. 權利行使期間의 性格과 認定根據 77 3. 起算點 78 4. 適用範圍 79 5. 權利保全의 方法 81 제4절 複合運送契約上 權利行使期間 82 1. 序論 82 2. 개별 운송구간에 대한 權利行使期間 83 3. 2011年 複合運送法 制定案에서의 權利行使期間 85 4. 立法的 補完 또는 考慮事項 87 제5절 傭船契約上 權利行使期間 89 1. 序論 89 2. 傭船契約의 權利行使期間의 性格과 特徵 90 3. 現行 2年 除斥期間의 立法背景과 批判 91 4. 立法的 補完 또는 考慮事項 102 제6절 小結 104 제6장 結論 106 참 고 문 헌 108 -
dc.language kor -
dc.publisher 한국해양대학교 -
dc.title 海上物件運送契藥의 權利行使期間에 관한 比較法的 硏究 -
dc.title.alternative A Comparative Study on limitation period under Contracts of Carriage of Goods by Sea -
dc.type Thesis -
dc.date.awarded 2014-02 -
dc.contributor.alternativeName Choi Do-soo -
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해사법학과 > Thesis
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