소유권취득조건부 선체용선계약의 유형과 법적성질 - 대법원 2019. 12. 27. 선고 2017다208232(본소), 2017다208249(반소) 판결을 중심으로 -

Abstract

As for the Supreme Court's rulings on December 27, 2019, 2017Da208232 (original suit) and 2017Da208249 (countersuit), As a result of examining in detail the legal nature of the Bareboat charter party while taking advantage of the purpose and intent of the law on Bareboat charter party to protect the interests of Bareboat Charterers and shipowners in a balanced manner, the following conclusions were drawn. (1) It is reasonable to regard it as a Ownership retained sale The essence of the Bareboat charter in this case should also be regarded as the Ownership retained sale. This is because a third type of Bareboat charter, such as in this case, should not be regarded as a lease that maintains ownership, but as an ownership retained sale that hands over ownership at the time of receipt of the full price of the charter. In other words, the main purpose of signing a Bareboat charter will be whether to secure ownership of the ship or the right to use the ship. Based on this, it is reasonable to regard the legal nature as a Ownership retained sale in that ownership is transferred after paying the final charterage. Second, in this ruling, general Bareboat Charter Hire Purchase Agreement differ from those set at a formal level or no additional delivery fee, but in the principle of freedom of contract, the final ship delivery may be a formal nominal amount and 20% of the total charter fee. Third, there is a precedent that the ownership of the ship in this case is not automatically transferred to the Plaintiff, but a separate ownership transfer is required after the expiration of the charter period in A unique type of BBCHP. (2) Requirements for inclusion in a BBCHP of a unique type. First, the charterage should be even a little or somewhat higher than the general charterage. In other words, it is difficult to regard it as a pure Bareboat charter to pay a rather large charterage for a long time. Second, when the final charterage or ship delivery price is paid at the expiration of the Bareboat charter, there must be an agreement to transfer ownership. (3) In the case where the charterage and ownership transfer consideration are unclear, If the charterage and ownership transfer consideration are unclear in the BBCHP, it is desirable to theoretically construct that the charterage and ownership transfer consideration are included in the same ratio. This is because in the case of this type of BBCHP, the charterage is set higher than the charterage of a pure Bareboat charter, and the charterer thinks that the charterage he spends includes ‘amount worth the transfer of ownership.’