외국선박을 대상으로 하는 선박우선특권 행사의 실행 기간 - 대법원 2011. 10. 13. 선고 2009다96625 판결 -

Abstract

Article 60 of the Korean Private International Law provides that maritime lien and other real rights on a vessel shall be determined by laws of her flag country. On the other hand, Article 786 of the Korean Commercial Code provides that maritime lien shall be extinguished unless it is exercised within one year from the date when the claim has arisen. In this regard, a question would be raised with regard to the issue of which laws shall be applicable to the time limit for exercise of maritime lien over a foreign vessel, i.e., a vessel whose state of registry is not Korea (who is registered in a foreign country). Although the Korean Commercial Code provides for the time limit of one year as above, in view of Article 60 of the Korean Private International Law, the issue may be one to be determined by the laws of vessel’s flag country. The Supreme Court judgment in discussion, where this issue was considered, takes the position that the issues regarding the way maritime lien is exercised including the time limit shall be determined by the procedural laws of Korea, where the maritime lien is exercised, resulting that the maritime lien shall be extinguished unless it is exercised within one year as provided in Article 786 of the Korean Commercial Code. This study aims to consider and prove that the Supreme Court’s position as above is not regarded as reasonable. To this extent, a general overview of maritime lien will be given and the position of several international treaties on the issue of time limit for exercise of maritime lien will be considered. In addition, consideration will be made on the issue of how the distinction between “substance” to be determined by the law chosen by the Private International Law and “procedure” to be determined by the laws of forum is made as well on the issue of whether the time limit for exercise of maritime lien shall be categorized as a substantive matter or a procedural one. Finally, together with some other related issues, it will also be considered in this study which matters out of those regarding maritime lien shall be categorized as procedure, to be determined by the laws of forum.