복합운송에 관한 입법론

Abstract

The Ministry of Justice of the Republic of Korea has been undergoing a process of enacting Multimodal Transportation Act as well as the Act on Air Transportation, which is to be incorporated under the Title VI of the Commercial Code. While the legislative attempt on multimodal transport was initiated in 1990, there exists only one relevant article on the liability of multimodal transport operator under the Article 816 of the Commercial Code. This article emphasizes the legislative needs for multimodal transportation, which subsequently requires to be governed by the commercial activities title in the Commercial Code. Although article 816 of the Commercial Code was first enacted to govern the multimodal transportation, the said article is primarily concerned with maritime transportation, thereby making it inappropriate to apply for land or air transportation cases. For this reason, the overall needs for legislation on multimodal transportation becomes indispensable. The legislation on multimodal transportation, at the outset, must set forth the definition of multimodal transportation or multimodal transportation contracts. This article suggests that the most appropriate liability system for multimodal transportation is network liability system, which has been adopted by Article 816 of the current Commercial Code. The limitation of liability for multimodal transport operator is laid down within the provisions on multimodal transportation in the case where transpiration act on each section does not separately set forth the liability limitation of the operator. The liability of multimodal operator is one of the most concerned issues in the practical field that is must be explicitly expressed. This article also discusses claim notice, exclusion period, imperative provisions and multimodal transport documents. It may be sufficient, on the one hand, to prescribe a general clause on transportation under the commercial activities title of the Commercial Code, and then stipulate an applicable provisions under the relevant transport act on the other. The legislation on multimodal transportation has been made in a few countries such as Germany, China and the Netherlands. And there has been a continuous effort to adopt an international convention. Once Korea joins those countries by enacting the act on multimodal transportation, it would be regarded as an advanced legislation. However, multimodal transportation at the international level requires an legislative technique to harmonize with other legislations due to its diverse nature among different countries. Such international multimodal transportation also calls for a reasonable legislation based on the balance of interests between a shipper and a multimodal transport operator.