편의치적에서 선박우선특권의 준거법 결정과 예외조항의 적용

Abstract

Article 60 of the Private International Law Act of Korea (“KPILA”) refers various matters relating to maritime commerce to the law of the country of the ship’s flag (which is understood as ship’s registration). Those matters include the ownership, mortgage, maritime lien and other real rights (rights in rem) over a ship and the priority of security interests over a ship. The fact that the KPILA includes Chapter 9 consisting of special choice of law rules for maritime commerce is one of its characteristics. Such connecting principle has also been applied without hesitation even to ships with a flag of convenience. For example, concerning the maritime lien on the ship carrying the flag of Saint Vincent and The Grenadines, the judgment of July 12, 2007 of the Supreme Court of Korea held that the law applicable to the maritime lien was the law of Saint Vincent and The Grenadines since that was the country of the ship’s flag. The author expressed regret that the Supreme Court did not pay attention to the fact the ship in question was a ship with a flag of convenience. Later in a case where there was a dispute as to whether the plaintiffs have acquired maritime lien on the ship carrying the flag of Panama, the judgment of the Supreme Court reviewed in this article (the “Supreme Court Judgment”) applied Korean Commercial Law to the issues on ① the existence of the maritime lien and ② the priority of the plaintiffs’ maritime lien and the defendant’s ship mortgage. The legal basis was apparently Article 8(1)(the “Exception Clause”) of the KPILA, which requires a Korean court to apply the most closely connected law, if the governing law designated by the KPILA is only slightly connected with the legal relationship concerned, and it is evident that the law of another country is most closely connected with the legal relationship. In fact, concerning the law applicable to maritime lien, many Korean scholars have adhered to the law of the country of the ship’s flag even in the case of ships with a flag of convenience. However, they admit exceptions under certain conditions which vary from one person to another. In particular, following the introduction of the Exception Clause in the KPILA in 2001 designed to implement the application of the law most closely connected with the issue in question, strong doubt has been expressed whether the position of the Supreme Court of Korea could be maintained under the Exception Clause. The Supreme Court Judgment being the supreme court judgment of Korea first applying the Exception Clause is an epoch making judgment in that it has refused to apply the law of the flag of convenience and applied Korean law by resorting to the Exception Clause. It is expected that in the future parties not satisfied with the governing law determined by the KPILA will more frequently resort to the Exception Clause. Since a case comment has already been published, the author focuses in this article on the controversial issues raised in the Supreme Court Judgment. More specifically, flag of convenience (Chapter Ⅱ.), background of the introduction, and requirements, of the Exception Clause (Chapter Ⅲ.), the legal consequence and the scope of application of the Exception Clause (Chapter Ⅳ.), whether the Supreme Court Judgment is consistent with the Supreme Court judgment of 2007 (Chapter Ⅴ.), whether the conclusion of the Supreme Court Judgment could be applied to ships with a flag of convenience in general (Chapter Ⅵ.), relationship between the doctrine of piercing the corporate veil in the case of ships and a flag of convenience (Chapter Ⅶ.), the impact of the Supreme Court Judgment on the international ship financing and the author’s assessment of the Supreme Court Judgment (Chapter Ⅷ.), the relationship between “the displacement of the regular connecting principles by the Exception Clause” and “the rebuttal of presumption under the KPILA” (Chapter Ⅸ.). It is clear that the Supreme Court Judgment has increased the legal uncertainty in determining the applicable law. However, that has already been expected by the introduction of the Exception Clause in 2001. The sacrifice of legal certainty within a certain limit is a price we have to pay in order to ensure the application of the law which is most closely connected with the issue in question. It should be emphasized that the conclusion of the Supreme Court Judgment could not generally be applied to ships with a flag of convenience. Considering the exceptional nature of the Exception Clause Korean courts should resort to the Exception Clause only under very stringent requirements. In parallel with that, we should try, by improving the connecting principles constantly, to ensure that the connecting principles contained in the KPILA remain reasonable. By doing that, resort to the Exception Clause could be reduced and remain under control.