한국 해상법의 발전 방향

Abstract

The Korean Maritime Law was enacted on 20 January 1962 as the Fifth Chapter of the Korean Commercial Code. About 30 years later, on 31 December 1991, it was partly amended and 16 years thereafter, on 3 August 2007, it was substantially re-amended. However, despite the above two amendments, the Korean Maritime Law still has very out dated provisions which are far apart from the current marine practices. In addition, even though the Korean Maritime Law adopted some of the international maritime conventions, Korea has not ratified these conventions, but simply introduced the contents of the international conventions into the Korean Maritime Law, which caused a lot of problems. Therefore, Korea, which is a country strong in shipping industries with a rank of 7 or 8th place, should rationalize and modernize its maritime law accordingly. In the author's opinion, the basic principles for the development of the Korean Maritime Law are the adoption of international conventions, the balance of interests between carriers and cargo owners, preservation of marine environment, and the modernization of maritime law. In order to implement these principles, it would be imperative to ratify appropriate international conventions which have been adopted broadly. Secondly, with regard to the law relating to the formation of shipping enterprises, (i) the provision prohibiting the arrest of a vessel which is ready for sail should be deleted, (ii) it should be studied to abolish flag of convenience system, (iii) the provisions relating to the captain which are simply historic remains, should be revised, and (iv) the limitation amount and the method for the invoking the limitation should be re-studied. Thirdly, with regard to the law relating to the activities of shipping enterprises, (i) it should be carefully studied whether to ratify UNCITRAL Convention on the International Carriage of Goods wholly or partly by Sea, (ii) the provisions relating to actual carriers should be supplemented, (iii) new provisions relating to the disposal of undelivered cargo should be added, (iv) with regard to the carriage of passengers, it should be positively studied to ratify 2002 Protocol to Athens Convention 1974. In addition, as regards charterparties, the Korean Maritime Law need to be modernized. Forthly, with regard to the law relating to the marine risks, the Korean Maritime Law is out-dated and need to be modernized. Fifthly, the author believes that after the Korean Maritime Law is amended up to the internationally acceptable level, the Korean Maritime Law should add a provision which makes the Korean Maritime Law compulsorily applicable. Lastly, as Korea, China and Japan are close to each other, the marine transportation among these countries would inevitably be increased and thus the maritime laws of the three countries cannot but affect each other. Therefore, in the author's opinion, it would be desirable that the maritime law scholars and the practitioners interact periodically and try to unify the legal system and practices relating to shipping business.