화물인도의 관행과 판례상 쟁점에 관한 고찰

Abstract

Due to technical development in international carriage of goods by sea and air, the disputes based on physical damages of shipment have been steadily reduced. On the other hand, however, under the complicated international business transactions, claims based on every parties' private rights and obligations have been continuously increased. Especially, after cargo arrival at destination agreed on transport contract, the matters of cargo delivery to the appropriate person occur many significant claims. This article aims to analysis exiting practices and legal precedents about 'cargo delivery' in Korea. First of all, regarding to the matters of clarifying the legal status of parties in international transport cases, this article suggests to distinguish actual carriers from contractual carriers on the legal precedents of Korean Supreme Court. Also, it is generally accepted that there are some various legal titles and vague definitions of freight forwards, not only in Korean Commercial code but also in cargo industry area. Regarding this uncleared situation, this article suggests that the legal terms indicating freight forwarders should be correctly used at least in court decisions to build up the sound precedent. Furthermore, this article concerns about one of the most significant issues in cargo delivery："legal relationship between freight forwarders (or contractual carriers) and bonded warehouse operators". According to the Korean Customs Regulations, all the import goods should be temporary stocked in bonded warehouse during the time for procedures of customs clearance. According to the regulations, the authority to designate a warehouse is not on carrier but on consignee(importer). Although there is not a contractual relationship between carriers(including freight forwarders at agreed destination) and warehouse operators, the existing theories assumed that there is a legal relation between those parties. These theories are based on the concept of "an implied contract" or "a contract for a third party", respectively. However, this article points out that those theories left a huge gap in the light of genuine intentions of every parties. Hence, this paper is explaining the weak point of the previous theories and trying to figure out the legal status of bonded warehouse operators and the legal relations between those parties.