로마협약상 국제운송계약의 준거법
Law applicable to a contract for the carriage under the Rome Convention
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This article deals with the rule of determination of the law applicable to a contract for the carriage under the EEC Convention on the Law Applicable to Contractual Obligations (‘Rome Convention’). Rome Convention distinguishes the rule for a contract of carriage of goods from that for a contract of carriage of passengers. To the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Art. 3 of Rome Convention, the law of the country of principal place of business of the carrier shall be presumed most closely connected, provided that the place of loading or the place of discharge or the principal place of business of the consignor is also situated in that country (Art.4.2 of Rome Convention). To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties, the law of the country of principal place of business of the carrier shall be presumed most closely connected according to Art.4. The law applicable to the contract of carriage of passengers is determined by Subparagraphs (1), (2), and (5) of Art.4 of Rome Convention. Article 5 of Rome Convention 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. The Regulation (EC) 593/2008 on the law applicable to contractual obligations (‘Rome I’) was adopted in 2008 and shall replace the Rome Convention in the Member States, except as regards the territories of the Member States which fall within the territorial scope of that Convention and to which this Regulation does not apply pursuant to Article 299 of the Treaty. Rome I is said to have chosen the predictability instead of giving up the flexibility provided by Rome Convention. The rules deciding the law applicable to a contract for the carriage under Rome Convention 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.
Abstract
This article deals with the rule of determination of the law applicable to a contract for the carriage under the EEC Convention on the Law Applicable to Contractual Obligations (‘Rome Convention’). Rome Convention distinguishes the rule for a contract of carriage of goods from that for a contract of carriage of passengers. To the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Art. 3 of Rome Convention, the law of the country of principal place of business of the carrier shall be presumed most closely connected, provided that the place of loading or the place of discharge or the principal place of business of the consignor is also situated in that country (Art.4.2 of Rome Convention). To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties, the law of the country of principal place of business of the carrier shall be presumed most closely connected according to Art.4. The law applicable to the contract of carriage of passengers is determined by Subparagraphs (1), (2), and (5) of Art.4 of Rome Convention. Article 5 of Rome Convention 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. The Regulation (EC) 593/2008 on the law applicable to contractual obligations (‘Rome I’) was adopted in 2008 and shall replace the Rome Convention in the Member States, except as regards the territories of the Member States which fall within the territorial scope of that Convention and to which this Regulation does not apply pursuant to Article 299 of the Treaty. Rome I is said to have chosen the predictability instead of giving up the flexibility provided by Rome Convention. The rules deciding the law applicable to a contract for the carriage under Rome Convention 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.
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