선하증권과 상환하지 않고 화물을 인도한 보세창고업자의 책임에 관한 판례에 대한 고찰

Abstract

In Korea, it has frequently happened that a warehouse keeper has handed over cargos without exchanging with a bill of lading or delivery order under the pressure of consignor and thereby a lawful holder of a bill of lading was damaged due to loss of cargos. In these cases, the Korean Supreme Court has held that a warehouse keeper shall be responsible for paying damages to a lawful holder of a bill of lading. And the Korean Supreme Court has presented the theoretical constitution that a warehousing contract would be impliedly made between a carrier and a warehouse keeper when a warehousing contract was made by a consignor and a warehouse keeper as an underlying rationale for its judgment. On the other hand, some researchers have insisted that it should be reasonable to be regarded that a contract for the carrier's profit was made in terms of handing over cargos when a warehousing contract was made by a consignor and a warehouse keeper. From the writer's point of view, the above opinions of both the Korean Supreme Court and researchers are not acceptable because those opinions have used the method of legal fiction without taking a consideration of the contracting parties. Consequently, the writer came to the conclusion that if there had been an agreement between a carrier and a warehouse keeper on a warehouse keeper having to hand over cargos only by exchanging with a bill of lading or delivery order, a warehouse keeper should have been responsible for paying damages to a lawful holder of a bill of lading, and that otherwise a warehouse keeper should have not been responsible for paying damages to a lawful holder of a bill of lading. And it shall be necessary to authorize a carrier to designate the warehouse where storing the bonded cargos through modifying the Korea Customs Service's Official Notification Regarding to Bonded Cargos Management § 4-①.