선원법상 선원근로계약의 준거법선택에 관한 연구－비거주선원의 근로계약을 중심으로－

Abstract

The working conditions of non-residential seafarers working on Korean vessels are different from those of residential seafarers in many respects. This is because the working conditions in the Seafarers' Act are not applied by shipowners to non-residential seafarers but their working conditions are decided by Collective Bargaining Agreements concluded between shipowners' organizations and seafarers' unions in accordance with international practices. The current shipping and fisheries industries conclude separately the collective bargaining agreement with non-residential seafarers and this practices have been wide spread and incorrigible. When concluding the seafarer's employment agreement with non-residential seafarers, a third law has been chosen as a governing law through collective bargaining agreement. It can be said that this is in line with the international private law that recognizes the parties autonomous principle so that the parties can choose the applicable law for seafarers’ employment agreement containing foreign elements. However, the Seafarers’ Act is a sort of unilateral as well as positive conflicts rules so that the Korean Seafarers’ Act is exclusively applied to any seafarers’ employment agreements regardless of resident or non-resident seafarers. In addition, the Seafarers’ Act excludes the possibility of selecting a third law as governing law. It takes closed and stiff legislative attitude and denies commercial practices and the party’s autonomy principle in international private law. Therefore, it is necessary to introduce provisions allowing shipowners and non-resident seafarers to select a third law as governing law through separate Collective Bargaining Agreements.