복합운송계약상의 운송인의 책임제도에 관한 입법론적 연구

Abstract

International transport has a high proportion in international commerce. In international transport, there are land transport, maritime transport and air transport, and multimodal transport combines two or more of these means of transport. Multimodal transport-related disputes can be resolved by international arbitration or international litigation, if international lawsuit is issued, the problem of determining of the international jurisdiction and the applicable law will be arisen.

Although, through international efforts, a unified convention that will regulate international multimodal transport (United Nations Convention on International Multimodal Transport of Goods) has been adopted, it is not yet in effect. Furthermore, since definitions of international multimodal transport in each country have not been unified, and different statutes govern individual transportation transactions in practices, confused situations have increased.

At present, multimodal transport is regulated by general terms and conditions (standard transport bill of lading form or uniform rules presented by dominant private groups such as FIATA, BIMCO, ICC), not by unified statutes.

As Korea didn’t have systematic legislation, there was a preceding necessity to properly establish domestic legislation, which would lead to the systematization of legal issues that involve multimodal transport.

As such, in a situation that required efforts to improve the safety of international multimodal transport and the efficiency of operation of the system and to prepare for legal disputes, new provisions governing the liabilities of multimodal transport operators were revamped in Article 816, Section 5 "Marine Commerce", Commercial Code, Aug. 3. 2007, based on the existing legislative theories.

More specifically, the revised Commercial Code that referred to the 1980 UN Convention on International Multimodal Transport of Goods stipulates that multimodal transport operators take liabilities according to the laws which would apply to the transport section in which damages or loss occurred (declaration of network liability system), or take liabilities according to the laws which would apply to the main transport section if the section in which damages or loss occurred is unclear, and they take secondary liabilities according to the laws which would apply to such sections for which freight rates are the highest.

The efforts to regulate the multimodal transport, though domestically, to prevent any confusion were desirable.

However, it is difficult to effectively govern the complicated legal issues of international multimodal transport with the simple one article of Commercial Code. Accordingly, it is necessary to have detailed provisions throughout multimodal transport.

According to the added provisions, only when the main section is determined, applicable principles and coverage of liabilities come out. Moreover, sometimes judgment by the court may be required to determine the main section. Accordingly, rather than giving an answer to a question in a way of leaving room for interpretation, it is required to reconsider the provisions so as to anticipate the coverage of liabilities by setting liability criteria clearly.

Furthermore, as the methodology to determine unclear accident sections, it is suggested to consider properly referring to one of marine related transport conventions or setting limitations of liability of the operators under the Korean Commercial Code.

In terms of the legislative system, it is suggested to consider establishing a chapter that includes land transportation as well as marine transportation in the Section "Commercial Activities". Tentatively, it is possible to establish a separate part in the next of the part "Maritime Transportation", it can be desirable in the long run to consider to enact an independent act that only covers multimodal transport.

In addition, when considering the principles and period of liabilities in multimodal transport and the owner and coverage of liabilities, it is necessary to continuously explore what is the best way to treat interested parties fairly so as to reflect it into legislation.

The revision of the Commercial Code relating to multimodal transport is under operation, so if the applicable law is determined by the laws of the Republic of Korea, the substantive content can be differently determined. In this point, the choice of the network liability system is important in conjunction with the contents of the applicable law. It is urgent to pass the multimodal transport related bill, so that, if the applicable law to the multimodal transport is specified by the Republic of Korea, the law can fulfill the international standard of multimodal transport.

So, this paper dealt with the law applicable to the multimodal transport that is now discussing the amendments in the Korean Commercial Code. And it discussed the liability system of the carrier in the multimodal transport contract, and proposed the revision of Korean Commercial Code of multimodal transport clause.