해상보험계약과 선하증권의 준거법약관에 대한 우리 법원의 해석과 이에 대한 고찰(서울고법 2012나29269 판결에 나타난 쟁점을 중심으로)

Abstract

Although very interesting, it is also a difficult subject matter as to hat is the legal effect of an applicable law clause, which designates a foreign law as applicable law, in a contract, especially in a contract such as marine insurance contract and contract of carriage of cargo by sea, and as to how that clause works under the legal relationship governed by the conflicts of law act. The author of this article does an analysis of the subject matter, which subject matter would be discussed among the practitioners and scholars in the future as a priority, by looking back at precedents and theories in respect of the relevant legal issues such as the court precedent of the Seoul High Court where various legal issues were reviewed and judged in relation to marine insurance contract and the contract of international carriage of goods by sea, Recent Korean court precedent shows that Korean courts have tended to strongly consider the drafter’s exact meaning of the words when constructing the clause which designates a foreign law as applicable law and have respected and widely applied English laws to international private law cases in respect of marine insurance. Meanwhile, certain court precedents do not provide clear and understandable meanings of their holdings since certain of their legal links explaining the logical process to reach the conclusion were omitted and there are substantial criticism from scholars as to the court precedents in respect of wide application of English law to the marine insurance cases, especially for cases where the right of direct action against insurer by victims under Korean Commercial Act is restricted due to English law.