운송인에 대한 청구권 경합에 관한 소고- 소송물 이론을 중심으로 -

Abstract

One of the main issues discussed in the legal relationship between carriers and shippers is the issue of contested claims. Consider the following scenario. A shipper entrusts a carrier with the transportation of his own cargo, and during the transportation of the cargo entrusted to the carrier, the shipper's ownership rights in the cargo are violated when the cargo is damaged or lost due to reasons attributable to the carrier himself or his assistants, and the carrier is liable for damages in tort under Article 750 of the Civil Code. On the other hand, considering that carriers are specialized in transporting large amounts of cargo and receive relatively low freight rates for each individual cargo, it would be harsh to recognize the carrier's liability without any restrictions, so the Korean Commercial Code imposes certain restrictions on the carrier's liability, such as flat-rate compensation, special rules for high-value goods, special reasons for the extinguishment of the carrier's liability, and statute of short limitations. Therefore, if a shipper claims damages against a carrier for damage or loss of cargo in his possession due to a cause attributable to the carrier, he will be subject to various liability limitations under the Commercial Code. In the case of maritime transportation and air transportation, there are provisions that apply the provisions of the Commercial Code to torts, but there is no such provision in the case of land transportation. As to whether the rules of commercial law can be applied to torts in land transportation, the judicial precedents are in the negative. Here, the question is whether a shipper, who is subject to certain liability limitations under commercial code in the case of contractual liability, can pursue a tort claim separately from a contractual default claim, as our precedents favor the competing claims theory, and we believe that the competing claims theory is justified from the perspective of victim protection, as it is necessary to give the victim a choice of whether to pursue liability for default or tort liability. In addition to these substantive legal issues, I think theory of dualism that uses both the claim and the facts as the basis for determining the identity of the claim subject of the theory of procedural law is the most plausible when a shipper wishes to pursue a claim through a civil lawsuit, what are the implications of asserting both a claim for default and a claim for tort in the same lawsuit, changing the claim, or asserting one claim and finally obtaining a judgment, then dismissing it and asserting the other claim, or, if each claim is asserted in a separate lawsuit, whether there is a risk of contradictory judgments or double enforcement if both lawsuits are successful, etc.