상법상 공동해손 규정에 관한 연구

Abstract

The Articles in respect of the general average in the section of Admiralty of the Korean Commercial Code have existed since the first legislation of the Korean Commercial Code dated on 1962. However, despite of the long history of them, they are rarely used in the maritime practice due to their non-mandatory characteristics, and furthermore the York-Antwerp Rules 1994 incorporated into the bill of lading or charter party, have played the important role in the establishment and the effect of the general average. That's the reason that while the York-Antwerp Rules 1994 are based on the knowledge accumulated in the maritime business and the international agreement between the shipowners and the cargo interests, the number of Articles in respect of the general average in the Korean Commercial Code is nothing more than 11 with the result that the contents of them are very abstract. In this regards, I would like to analyze each Article in respect of the general average in the Korean Commercial Code in comparison with the York-Antwerp Rules 1994 and propose the idea for the improvement of the current Articles in the related parts. Followed by the analysis, I also note that the Article 60 of the Private International Law adopts the principle of the ship's nationality as regards the general average issue, and therefore the Articles in the Korean Commercial Code would be applied in the case that a ship of which nationality is the Republic of Korea sustains the general average, unless the York-Antwerp Rules 1994 is incorporated into the bill of lading or the charter party. However, it is necessary to review prudently whether or not the Articles related with both the requisite for and the adjustment of general average(including the calculation of general average and contributory value) in the Korean Commercial Code are applied in this case.