공선하증권의 효력에 관한 판례 평석 - 2006다47585 사건을 중심으로 -

Abstract

There has been an argument on the legal effects of bills of lading when the bills are issued by the carriers without receipt of the goods or shipment, mainly concerned with literal and casual nature of bills of lading. Adapting liter nature which reads highly of the statements itself on the b/l for 3rd party protection and enforcement of negotiability of the bills, as aone of negotiable instruments, carriers should bear contractual liability against the bona fide holder of the bills once issued by the carriers without receipt of goods. On the other hand, they will be liable in tort only in case of casual nature because the bills always requires carriers’ receipt or shipment of the goods to be effective, however the goods was not actually in receipt or shipped so that the bill comes to null and void. Among the above, Korean Supreme Court has taken the second view and it was reconfirmed through their decision in the case 2006 Da 47585, being based on old Korean Commercial Code(“KCC”) before 1991 amended version stating that “when a bill of lading isissued, the matter relating to transportation shall be determined between the carrier and the holder of the bill, by virtue of the statements made in the bill of lading.” However, current Article 854 of Korean Commercial Code provides that, similarly to Clause 3.4 of the Hague-Visby Rules, “statement in a bill of lading shall have presumptive effect(i.e., it become prima facie evidence), in proviso a carrier shall not be allowed to assert upon a matter different from the statement in a bill of lading in good faith.” Therefore, the Korean Supreme Court’s stance on this issue needs to be changed because there will be little point to argue under such a Article.