貨物相換證의 物權的 效力에 관한 小考* － 증권의 교부와 운송물의 인도에 대한 해석을 중심으로 －

Abstract

The consignment sheet is the securities that is representative of a claim for delivery of the freight. If the consignment sheet is delivered to a holder in due course of the consignment sheet, it happens that come into force the same effect as freight's delivery about the acquisition of the right on the freight. This provision in Commercial Law § 133 is effective and well-directed. This effect on Commercial Law § 133 is the real right's validity on the consignment sheet, and in this way the consignment sheet is named the 'Traditionpapier'. But there are many different theories about how to explain the real right's validity on the consignment sheet. For example, there are ① 'absolute theory', ② 'strict relative theory', ③ 'representative theory', ④ 'modified relative theory' (securities' effect theory) and so on. Although ③ 'representative theory' is a predominance doctrine, it is lacked the concrete explain for the meaning of the 'representative' in connection with the transfer of a direct possession or indirect possession at the Civil Law. And It is wrong that by virtue of ① 'absolute theory' the delivery of a consignment sheet means the transfer of a direct possession, and on the ground of ② 'strict relative theory' the delivery of a consignment sheet means the transfer of an indirect possession. Consequently, ④ 'modified relative theory' falls in with the legislation purpose of Commercial Law and is suited to the analytical research on Civil Law. In Civil Law, A method for transfer the possession is real delivery, summary delivery, agreement on possession, delivery of the right to request a return. So then it is appropriate that the delivery of a consignment sheet is constructed a new method for transfer the possession in Commercial Law as such an extraordinary processes along with a method for transfer the possession accepted by Civil Law.