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국제무역증진을 위한 유통증권(화물상환증 등) 법리의 명확성 제고

A study on the clarification of the interpretation concerning the bill of lading to enhance Korea's international trade

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주제분류법학

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This study is on the need of true and accurate writing of the Securities as a motive to compliance. In reality, it's still a big problem in the securities if the substance is different from the document. In the case of the carrier's loss of occupation when a third party obtains it can bring serious troubles with respect to the validity of the bonds. In reality, bills of lading, freight exchange slips and warehouse securities are documents having evidential function as well as negotiable instruments. These securities are subject to the contract of carriage (custody) and inevitablly has a essential character of carriage(custody) which can not ignore the causal relations (real relationship). This should be considered in interpreting the securities' credital force. Article 131 of the Commercial Code was revised in 2010. Obviously, the revised law stresses on the wording of the document itself more than substantial fact. However, the problem mentioned above has not been solved eventually. In particular, the essential relation between the carrier and consignor, holder of securities(real relationship) need to clear up the claiming credit of the bill of lading(securities of custody). In essence, the bill of lading is different from the promissary note and check, in that the former is influenced by the real relationship as the latter is not. Bill of lading is subject to the real performance, but the need of protection of its holer is another. About the credital force of the bill of lading, there are several traditional theories performed. But in my opinion, the carrier's fiduciary duty should be stressed in this issue additionally. The accurate writing of the transport documents(bills of lading) regarding the factual relationship (type, quality and quantity of cargo, packaging, shipping status, etc.) is absolutely of importance because it is the premise of claims(including claiming issuing bank). I propose that the carrier's attachment of the additional material of cargo shipments and samples of photos about the state of shipping. While this is not regulated in the Commercial Act, the attachment of these materials will reduce the trouble between the parties. Though the Commercial Code concerning the bill of lading has been revised, we should try to enhance the credibility of the bill of lading in the international market especially. For example, we should stress on the carrier's duty of care in the writing the documents. According to my opinion, in the case of the discrepancy between the wording and the real transaction, the concrete conclusion may differs from the traditional theories. I hope my proposal above can improve the Korea's international transactional surrounding and make the predictability of trade higher in the future.

Abstract

This study is on the need of true and accurate writing of the Securities as a motive to compliance. In reality, it's still a big problem in the securities if the substance is different from the document. In the case of the carrier's loss of occupation when a third party obtains it can bring serious troubles with respect to the validity of the bonds. In reality, bills of lading, freight exchange slips and warehouse securities are documents having evidential function as well as negotiable instruments. These securities are subject to the contract of carriage (custody) and inevitablly has a essential character of carriage(custody) which can not ignore the causal relations (real relationship). This should be considered in interpreting the securities' credital force. Article 131 of the Commercial Code was revised in 2010. Obviously, the revised law stresses on the wording of the document itself more than substantial fact. However, the problem mentioned above has not been solved eventually. In particular, the essential relation between the carrier and consignor, holder of securities(real relationship) need to clear up the claiming credit of the bill of lading(securities of custody). In essence, the bill of lading is different from the promissary note and check, in that the former is influenced by the real relationship as the latter is not. Bill of lading is subject to the real performance, but the need of protection of its holer is another. About the credital force of the bill of lading, there are several traditional theories performed. But in my opinion, the carrier's fiduciary duty should be stressed in this issue additionally. The accurate writing of the transport documents(bills of lading) regarding the factual relationship (type, quality and quantity of cargo, packaging, shipping status, etc.) is absolutely of importance because it is the premise of claims(including claiming issuing bank). I propose that the carrier's attachment of the additional material of cargo shipments and samples of photos about the state of shipping. While this is not regulated in the Commercial Act, the attachment of these materials will reduce the trouble between the parties. Though the Commercial Code concerning the bill of lading has been revised, we should try to enhance the credibility of the bill of lading in the international market especially. For example, we should stress on the carrier's duty of care in the writing the documents. According to my opinion, in the case of the discrepancy between the wording and the real transaction, the concrete conclusion may differs from the traditional theories. I hope my proposal above can improve the Korea's international transactional surrounding and make the predictability of trade higher in the future.

참고문헌 (41)

  1. 강위두, "상법총칙·상행위법" (2004)
  2. 김용태, "전정상법(상)" (1984), 원광대출판부
  3. 김인현, "해상법" (2011), 법문사
  4. 이철송, "상법총칙·상행위" (2010), 박영사
  5. 이철송, "어음·수표법" (2012), 박영사
  6. 김동훈, "상법개설" (2009), 한국외대출판부
  7. 김병연, "상법총칙·상행위" (2012), 박영사
  8. 김성태, "상법총칙·상행위 강론" (2002), 법문사
  9. 김영호, "상법총칙·상행위법" (2004), 팔마도서
  10. 김정호, "상법강의(상), 제 4 판" (2005), 法文社
  11. 김종엽, "상법강의(상)" (2002), 세종출판사
  12. 서정갑, "개정상법(총칙·상행위)" (1986), 일신사
  13. 손주찬, "상법(상)" (2004), 박영사
  14. 손진화, "상법강의" (2013), 신조사
  15. 송옥렬, "상법강의" (2011), 홍문사
  16. 안강현, "상법총칙·상행위법" (2008), 박영사
  17. 양승규, "상법요론" (1999), 삼영사
  18. 유중원, "운송증권" (2009), 법률문화원
  19. 이균성, "신해상법대계" (2010), 한국해양수산개발원
  20. 이기수, "상법총칙·상행위법" (2010), 박영사
  21. 이범찬, "상법(상)" (2001), 삼영사
  22. 임석민, "선하증권론" (2010), 도서출판 두남
  23. 임홍근, "상행위법" (1989), 법문사
  24. 정경영, "상법학 강의" (2007), 박영사
  25. 정동윤, "상법(상)" (2010), 박영사
  26. 정동윤, "상법(상)" (2012), 법문사
  27. 정찬형, "상법강의(상)(제15판)" (2012), 박영사
  28. 정희철, "상법상(상)" (1989), 박영사
  29. 채이식, "상법강의(상)", 1998
  30. 최기원, "상법학신론(상)" (2012), 박영사
  31. 최종현, "해상법상론" (2009), 박영사
  32. 권기훈, "해상운송물 인도 방법의 문제점과 대안 -권리포기 선하증권의 폐지와 대안을 중심으로-", 법학연구, 17(2), pp.191~218 (2014), 법학연구소
  33. 양석완, "화물인도지시서의 발행에 관한 법적 쟁점", 비교사법, 17(3)통권 : 50, pp.291~328 (2010), 한국비교사법학회
  34. 서영화, "국제운송물류법의 법적 과제" (2007), 국제거래법학회·국제해법학회·동아대학교 법학연구소
  35. 이정원, "화물인도지시서의 법적성질과 보세창고업자의 법률상 지위에 관한 고찰- 대법원 2009. 10. 15. 선고 2009다39820 판결의 평석을 중심으로 -", 법학연구, 54(4), pp.177~201 (2013), 법학연구소
  36. 이태환, "금융위기 이후 한국수출", SERI 경제포커스, (404) (2012)
  37. 전영우, "세월호 사고예방 대책 어디까지 왔나?" (2014), 고려대 해상법연구센터
  38. 정영석, "해상화물운송장에 대한 개정상법 규정의 재검토", 해사법연구, 20(1), pp.333~358 (2008), 한국해사법학회
  39. 정완용, "해상화물운송장의 입법방안에 관한 고찰", 한국해법학회지, 26(2), pp.71~88 (2004), 한국해법학회
  40. 정윤세, "한국형 전자선하증권 활성화 과제에 관한 연구", 한국무역학회 산관학 무역정책 대토론회 발표논문집 (2009)
  41. 한낙현, "국제무역거래상 선하증권의 추정적 증거에 관한 연구", 무역학회지, 36(5), pp.73~99 (2011), 한국무역학회

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