EU법상 국제운송계약의 준거법 - 「로마 I 규칙」을 중심으로 -

Abstract

This article deals with the rule of determination of the law applicable to a contract for the carriage of the European Union under the Regulation (EC) 593/2008 on the law applicable to contractual obligations (‘Rome I’). Rome I has a new independent article (Art. 5) regarding a contract for the carriage, and distinguishes the rule for the contract of carriage of goods from that for the contract of carriage of passengers. If there is no law applicable to the contract for the carriage, Art. 5 applies to it instead of Art.4 of Rome I. According to Rome I, a contract for the carriage shall be governed by the law chosen by the parties (Art. 3). The parties may choose as the law applicable to a contract for the carriage of passengers in accordance with Article 3 only the law of the country where: (a) the passenger has his habitual residence; or (b) the carrier has his habitual residence; or (c) the carrier has his place of central administration; or (d) the place of departure is situated; or (e) the place of destination is situated. The choice can be made clearly demonstrated by the terms of the contract or the circumstances of the case. To the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Art. 3, the law applicable shall be the law of the country of habitual residence of the carrier, provided that the place of receipt or the place of delivery or the habitual residence of the consignor is also situated in that country. If those requirements are not met, the law of the country where the place of delivery as agreed by the parties is situated shall apply. To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties, the law applicable shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country. If these requirements are not met, the law of the country where the carrier has his habitual residence shall apply. Article 6 of Rome I regarding consumer contracts shall not apply to a contract of carriage other than a contract relating to package travel within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. Rome I is said to have chosen the predictability instead of giving up the flexibility provided by the Convention on the Law Applicable to Contractual Obligations 1980 (‘Rome Convention’). The rules deciding the law applicable to the contract for the carriage under Rome I will be a guide to the discussion regarding the necessity of an independent article for the law applicable to the contract for the carriage, the necessity of distinguishing the contract for the carriage of goods from the contract for the carriage of passenger, the relationship between the contract for the carriage and the contract for a consumer contract etc. of the Private International Law of Korea.