국제거래에서의 FOB계약 조건의 본질과 해석·적용에 대한 소고

Abstract

In the sphere of the International trade law, the most striking event in the recent years was ratification of the United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention), as a uniform international sales law, as of 6 March 2013, by 79 countries including Republic of Korea, United States. China, Japan, which account for a significant proportion of world trade. FOB (Free on Board, or Freight On Board) is an acronym pertaining to the shipping of goods, which specifies which party(buyer or seller) pays for which shipment and loading costs, and/or where responsibility for the goods is transferred in the International Sale of Goods. A number of attempts has been made by the English courts to define this word as a contractual term of trade since the late 19th century, and thereafter this word came to mean a ‘contractual term’ on the part of seller’s obligations; the responsibility of putting goods “free on board”. In the past, the risk and title of goods transferred to a buyer was when goods were passing ‘ship’s rail’ under the classic form of FOB. However, this has been replaced by ‘vessel on board’ according to ‘the International Rules for the Interpretation of Trade Terms(“Incoterms”) 2010’ published by ICC, which came into force on 1 January 2011 in order to reflect the modernized transport mechanism. The purpose of Incoterms, undoubtedly, is to avoid or reduce the uncertainties of different interpretations of trade terms in different countries by providing a set of rules for the uniform interpretation of the most commonly used trade terms, such as FOB. Yet, there still exists a criticism that Incoterms 2010 may not be appropriate where goods are handed over the carrier before they are on board the vessel, for example, if the goods are being transported in containers. Considering such legal and practical backgrounds, this essay firstly attempts to set out the basic elements of FOB, as a ‘contractual term’, by examining them in precedents of the English courts. Secondly, usages of the term with regard to the delivery and title-transfer of goods will be discussed with a particular focus on the similarities and differences between CISG, Intercoms2010, and the English precedents. Lastly, I will provide case studies on the rulings made by the Korean courts relating to FOB contracts in comparison with the Western standards and try to evaluate the uncertainties of the rulings.