海上物件運送法의 改正方向에 관한 硏究

Abstract

The purpose of this study is to contribute to the adequate and reasonable revision of the Korean Maritime Commercial law 1991 in the Korean Commercial Code.

The first modern legal system was introduced into Korea by Japan when Japan started to occupy Korea into 1910. Although there had been a system of law before that it dealt mainly with administrative and criminal matters and did not cover commercial matters on any significant scale. Trade and commerce, therefore, were regulated by customs and commercial usage. During the Japanese occupation, the applicable Korean law was, unless otherwise prescribed, presumed to be identical with Japanese law. After the independence in 1945, relations with Japanese law were completely severed at least in a technical sense. In the course of introducing new legislation, however, many new statutes were in practice modeled on previous Japanese laws.

Like Japanese law, Korean law is based upon codified law. In this sense, it resembles what is called the Continent Civil law. In theory, cases, whatever courts pronounced the decision, do have no binding effect upon future cases and each court is entitled to decide the case before it on it merit based upon the law pronounced in the code. In practice, previous decision relating to the case are usually cited by counsels and consulted by judges. The previous decisions of higher court are bound to influence the case since the decision is inevitably subject to the subsequent review of higher court. Unlike under common law, legal theories expounded by scholars in law books in law carry great weights under civil law.

The Korean Maritime Commercial Law is contained in Book V of the Korean Commercial Code. In a structural sense, the provision is a part of the Commercial Code. The Commercial Code lays down in Book I and Book II the general principles of Commercial Law applicable to all commercial cases. Therefore, these provisions apply to maritime cases where no special express provision is found applicable to maritime cases in Part V. In cases where no appropriate provision is found in the Commercial Code as a whole, relevant provision is found in the Civil Code apply to the case because the Commercial Code is a special act applicable over and above the general act of the Civil Code. The code of Civil Procedures is also an important source of law governing the procedure for maritime dispute settlement.

The Korean Maritime Law has been revised twice up to date to be developed and reflected by the shipping practices. However, some problems have been pointed out for a long time in the interpretation of some provisions and its entire constitution. First of all, there have been no effective provisions relating to the charter parties i.e time charters and voyage charters. These types of shipping business quite frequently are done and made between the Korean shipping companies. However, it is a kind of non-sense that there are no effective provisions to govern the legal relationship between the parties. In addition, there have been many developments in the studies and practices relating to the changes of shipping circumstances over the world. These are exampled by the electronic bills of lading and sea waybills, on which there also are no provisions to govern.

Besides the above, it has been pointed out that there are serious problems in interpreting the provision as to when is the timing of delivery of goods at discharge ports and why a charterer are responsible for damages to the third party to the extent that the fulfillment of the contract belong to the duties of the master even under the fact that he is not bound with the contract evidenced by the bills of lading as a carrier.

The above is just presented as some examples to describe the issues which have the respective problems. This study deals with several arguable aspects in the Korean Maritime Law.

For the purpose of the adequate and reasonable revision, the deep studies and research is required at this moment. First of all, the main trend of the international discussion for revision of International Transport Law and other conventions / rules and the general practices in the shipping businesses should be taken into account for it. Such trend, the comparative studies on foreign laws, and practical advice are described in this thesis to present the general principles for the adequate and reasonable revision.