최근 선박금융의 법적 쟁점과 입법정책

Abstract

Ship finance is closely related to shipping industry, shipbuilding industry and banking industry. Complex contractual relationship, therefore, exists under ship finance. In respect of ship finance, a buyer asks for refund guarantee regarding a shipbuilding contract. The builder, therefore, makes an effort to obtain the refund guarantee from a guarantor. Usually, a commercial bank becomes a guarantor. This refund guarantee is a kind of independent bank guarantees and the buyer becomes a beneficiary under refund guarantee. One of significant characteristics of refund guarantee is independence, so refund guarantee is independent of the shipbuilding contract which is an underlying contract. The guarantor, therefore, irrevocably and unconditionally guarantees repayment of advance payment. However, the independence of refund guarantee should be limited under the principle of prohibition of abuse of a right. The Korea Trade Insurance Corporation lets commercial banks issue the refund guarantee to small & medium shipbuilding corporations through the export bond insurance system. The Korea Trade Insurance Corporation, therefore, makes an export bond insurance contract with a commercial bank. The Korea Supreme Court recently decided a case in respect of an export bond insurance contract. In this case, the Korea Supreme Court supported a defendant(the Korea Trade Insurance Corporation)' arguments on the ground that a commercial bank as the assured violated the special terms and conditions of the export bond insurance contract. As a result of bankruptcy of Hanjin Shipping, a shipping industry has been in distress. The Ministry of Oceans & Fisheries(MOF) tried to support the shipping industry, but MOF’s policy has not been effective. The Government needs to establish Korea Ship & Ocean Finance Corporation to enhance the shipping industry. Functions of Korea Ship & Ocean Finance Corporation include chartering, guarantee insurance and ship investment.