운송물처분권에 관한 입법론적 고찰

Abstract

Article 139 and article 815 of the Korean Commercial Code (hereunder, KCC) defines the controlling party as the shipper and the holder of a negotiable transport document. According to the said articles of KCC, the right of control consists of the right to stop carriage of the goods, the right to give instructions to return the goods, and any other executions in respect of the goods. However, because KCC restricts the controlling party to the shipper and the holder of a negotiable transport document, it can not only expose legal problems for the identification of the controlling party for the various kinds of transport documents which are commonly used in real business, but also causes controversy as to the meaning of ‘any other executions’ as an element of the right of control. In addition, as KCC does not have provisions for the transfer of the right of control, it is not clear whether the right of control is transferable or not. In contrast to KCC, as the Rotterdam Rules have some detailed provisions for the right of control, provisions of the Rotterdam Rules on the right of control seem to be a good model for the future revision of KCC as well as the interpretation and application of KCC. Under the Rotterdam Rules, the right of control is limited to (i) the right to give or modify instructions in respect of goods, (ii) the right to obtain delivery of the goods at a scheduled port of call, in respect of inland carriage, any place en route, and (iii) the right to replace the consignee by any other person. Furthermore, goods that are delivered pursuant to the controlling party’s instruction are deemed to be delivered at the place of destination. In principle, however, the right of control shall be exercised within the limitation of the contract of carriage itself, and shall be construed the terms of reasonableness and predictability. Therefore, it should be allowed for the carrier to reject the controlling party’s instructions, when instructions were unreasonable. If any reasonable additional expense incurred upon executing the controlling party’s instructions, the controlling party shall, in any event, reimburse or/and indemnify the carrier, and if requested by the carrier the controlling party shall provide the carrier with security for the amount of additional expense, loss or damage. In the meantime, by giving the controlling party the right to agree with the carrier to variations to the contract of carriage, the Rotterdam Rules permit the controlling party any rooms widening contents of the right of control other than originally referred to the Rotterdam Rules. Even though the controlling party is not a party to the contract of carriage, the identity of the controlling party is important from a business perspective as the controlling party plays essential roles for the whole period of carriage. For this reason, the Rotterdam Rules define the controlling party for the detailed situations, whether the transport document was issued or not, whether the issued transport document was transferable or required surrender or not. Provisions of the Rotterdam Rules for the right of control can be evaluated as an advanced legislation, and shall be a good reference for the interpretation and application of KCC. It is not clear, however, whether the transfer of the right of control can be approved without accompanying the transfer of the status of a party to the contract itself under the Korean legal system.