海事國際私法의 몇 가지 문제점―준거법을 중심으로

Abstract

One of the characteristics of the maritime law is that it has international characters. Therefore, the statement that the area of the maritime law could be viewed as a treasure house of choice of law issues is not an exaggeration. However, the maritime law experts in Korea have almost neglected the choice of law issues arising from maritime matters, while admitting that one of the characteristics of the maritime law is that it has international characters. In addition, standard textbooks on conflict of laws in Korea have confined themselves to just repeating the provisions of the Conflict of Laws Act of Korea. In order to improve the situation, the author published in 1999 an article entitled “Several Choice of Law Issues on the Law applicable to Bills of Lading：Introductory Remarks on the Law on Contracts for the International Carriage of Goods by Sea”. In this article, the author elaborates on the choice of law issues which had been discussed in a previous article and discusses other issues raised by several recent decisions of the Supreme Court of Korea. More concretely, the issues described below are discussed. First, law applicable to bills of lading (chapter Ⅱ). Secondly, Article 799 (1) of the Commercial Code of Korea, which prohibits carriers from exempting or reducing their liabilities arising from carriage by sea, should be viewed as an internationally mandatory rule which should be applied by Korean courts irrespective of the law applicable to bills of lading (chapter Ⅲ). Thirdly, choice of law rules applicable to torts in general and accessory connecting principles under which if the tort violates an existing legal relationship between the tortfeasor and the injured party, the tort shall be governed by the law applicable to the legal relationship (chapter Ⅳ). Here the author discusses two issues, namely, ① the interrelationship between the law applicable to bills of lading and the law applicable to torts, and ② the interrelationship between the law applicable to bills of lading and law applicable to the carrier’s liability arising from delivery of goods under a shipping letter of guarantee to a person other than the holder of bill of lading. Fourthly, whether the escape clause of the Conflict of Laws Act of Korea (i.e., Article 8) could be applied to the case of flag of convenience (chapter Ⅴ). Fifthly, whether Article 60 of the Conflict of Laws Act of Korea, whereunder whether the shipowner of the ship shall be entitled to invoke limitation of liability and the scope of such limitation of liability shall be governed by the law of the country of the ship’s registration, is unconstitutional (chapter Ⅵ). Sixthly, whether parties are allowed to select a foreign law as the law applicable to a pure domestic case (chapter Ⅶ). In the future, we should make efforts to improve the current rules of the Conflict of Laws Act of Korea by removing any defects of the same, while trying to settle choice of law issues arising from maritime matters by correctly applying the current rules of the Conflict of Laws Act of Korea.