수하인(매수인)에 대한 위험이전의 문제점 검토 -운송을 수반하는 국제물품매매를 중심으로

양석완 ( Seok Wan Yang ) 韓國海法學會 2009 韓國海法學會誌 Vol.31 No.2

우리나라에서도 비엔나협약이 2005년 3월부터 효력이 발생한 상황이어서, 동 협약이 국제물품매매에 관하여 우리나라의 국내 민법 및 상법의 특별법으로서 자리 잡고 있다. 위험이전에 대한 규정이 없는 우리나라 법의 경우에는 일차적으로 당사자간의 계약내용을 중심으로 위험이전의 한계를 규명하고, 이러한 계약내용을 통하여 그 책임한계가 명확하지 않을 때는 법체계상의 해석을 통해 이를 해결하여야 한다. 그리하여, 우리나라 상법상 매도인(송하인)이 운송물처분권(right of control of goods)을 행사하는 경우에는 물품에 대한 지배(in control of goods)와 위험을 연결하는 위험지배주의에 비추어 매수인(수하인)에게 위험이 이전되었다고 볼 수 없고, 매도인이 여전히 위험을 부담하는 것으로 새겨야 할 것이다. 이처럼 물품의 지배에 따른 위험배분은 물품을 직접 점유하거나, 물품을 가지고 있는 제3자에게 물품에 대한 지시를 할 권리를 가지는 당사자에게 위험을 부담시킨다면, 물품의 보호라는 면에서 보다 적당한 조치를 취할 수 있고 그렇지 않은 경우에도 또한 보험에 의해 손해를 전보하기에 용이할 것이기 때문이다. 여기서 기존 위험이전원칙에 대한 반론이 제기되고, `위험지배주의`라고 하는 논의의 실마리가 제시될 수 있다. Though the Korean Civil Code does not have a specific provision with respect to shift of the risk of loss, it could be acknowledged from the interpretation of the Civil Code. This is because it is theoretically resonable that a seller should be protected from the risk of loss when she is proved that she took all the necessary actions for her performance of the obligation, and because it corresponds with the usage of practice and the economic viewpoint that combines control and risk of goods. As a general rule, risk of loss is governed by the United Nations Convention on Contracts for the International Sale of Goods, 1980 (CISG). the CISG will enter into force, insofar as Korea is concerned, in March 2005. However, these agreements have many problems in solving the issue of the passing of risk that arise in the actual trade transaction, especially, in the seller`s having the right to control of the goods. In this regard, passing the risk of loss from seller to buyer should reflect consideration such as thesis: Which party is in a better position to evaluate the loss and press a claims against the insurer and to salvage or dispose of damaged goods? Who is more likely to carry insurance under standard commercial practice? What rules on risk will minimize litigation over negligence in the ships and custody of goods? This review reveals that there exist significant differences between the CISG and Korean Law, for example, on the seller`s right of control of the goods and the legal status of buyer as consignee and so on. I suggest that the clear criterion regarding the passing of risk will play a critical role in the issues of who will make a contract with carrier; who will have the right of control of goods; and who will claims against the insurer.

일반연구논문 : 해상법상 선박관리회사의 책임제한 배제사유 - 대법원 2012.4. 17.자 2010마222 결정 -

양석완 ( Seok Wan Yang ) 한국법정책학회 2015 법과 정책연구 Vol.15 No.1

A ship management company broadly deals with the acquisition of the ships, securing income from the ships, operating the ships and running the business. One of the important thing is that ship management and administration functions to be undertaken by a third party management company rather than in-house management company. For all ship and shipowners, whether a ship management company has full authority to supervise and control the vessel or not, its behavior depends on the definition of shipowner for the limitation proceeding or not. On the other hand, the right to limitation of liability may be lost if the cargo claimants proves: ( i ) that the loss was caused by the personal act or omission of the ship management company; (ii) that the personal acts or omission were committed recklessly; and (iii) that ``at the time of those acts or omissions``, the ship management company actually knew that such loss would probably result. By comparison, International Convention on Limitation of Liability for Maritime Claims, 1976 at art. 4 and Korean Commercial Act at art. 769, 797(1) more clearly sanction Quasi-deviations, but only where the offending ship manager acts with intent to cause the loss or recklessly and with knowledge that such loss would probably result. This paper pays attention to three specific cases of the reason to exclude limitation of the ship management in the commencement proceeding for limitation of liability. They are ( i ) the definition of ship under the tug or barge boat, (ii) the significance of the full authority of the ship management company to supervise and control the vessel, and (iii) its intentional act or reckless behavior.

인도지연으로 인한 경제적 손해의 책임범위에 대한 예견가능성의 로테르담 규칙 적용상 쟁점 연구

양석완(Seok-Wan Yang) 한국기업법학회 2013 企業法硏究 Vol.27 No.3

In principle the delay liability covers of lost sub-contract or alternative goods, the loss of profit, the decrease of market value, and other pure economic loss sustained by the consignee, for example, where an industrial plant could not operate because components and parts of an essential machine were delivered late, etc. This can be termed ‘economic’ or ‘non-physical’ loss and is sometimes referred to as ‘consequential’ loss. Owing to the economic value of Article 21 under the Rotterdam Rules might prove to be quite high, Article 60 regulates the limitation of liability for loss caused by delay. If only economic loss occurred as a result of delay in delivery, the limitation of liability of carrier is limited to an amount equivalent to 2.5 times the freight payable on the goods delayed. The foreseeability rule has its greatest relevance in limiting recovery for consequential or economic damages, including loss of profit. This foreseeability rule can be traced back to an Anglo-American rule initiated by the English Court of Exchequer in Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. 1854). The Hadley rule is deemed to have affected the concept of foreseeability as a damages-limiting principle in the Japanese civil law, and also that of the Korean counterpart through the Japanese civil code. On the other hand, the right to limitation of liability under 60 may be lost if the cargo claimants proves: (ⅰ) that the loss was caused by the personal act or omission of the carrier; (ⅱ) that the personal acts or omission were committed recklessly; and (ⅲ) that ‘at the time of those acts or omissions’, the carrier actually knew that such loss would probably result. The requirement that such loss would ‘probably’ result is so-called the foreseeability. This probably means that the breaching party may be liable for a lesser range of economic loss under the Rotterdam Rules than under the CISG regime. The foreseeability rule as provided in Article 61 under the Rotterdam Rules is different in several respects from CISG Article 74. From a comparative law perspective, considering especially the respective pertaining to the liability for consequential losses in the Korean civil code, it is thus worth analyzing the doctrine of foreseeability in Anglo-American law established under Hadley v. Baxendale as applicable in the carrier"s liability of delay in delivery under the Rotterdam Rules.

의사표시를 구하는 소송과 보전처분의 한계

梁碩完(Seok-Wan Yang) 한국비교사법학회 2007 비교사법 Vol.14 No.3

The theory of interest of claim in the civil procedure law is one of the most complex and important aspects of civil procedure law because it determines who may legally bring a case to court as the right party to the civil procedure law. I focused my study on the interest of claim in the civil suit as a substitute for a declaration of intention and provisional dispositions. Provisional dispositions in respect of the subject-matter in dispute are admissible, if it is believed that by reason of a change in the existing situation the realization of the right pertaining to a party would be impossible or that material difficulty in the realization thereof would be produced. Provisional dispositions may take place where it is to be apprehended that, failing such measures, execution of the judgment would be impossible that material difficulty in the execution thereof would be caused. In actual execution procedure, the limit of claim frequently becomes an obstacle with regard to bring an action in a court. In conclusion, by analyzing the status of the interest of claim in civil execution procedures, we could confirm how litigants in the civil suit as a substitute for a declaration of intention are protected.

로테르담 규칙상 중재합의에 관한 법적 검토

양석완 ( Seok Wan Yang ) 안암법학회 2013 안암 법학 Vol.0 No.41

The newly adopted Rotterdam Rules in 2008 by UN has a substantive provisions on arbitration while allowing the cargo claimant to choose where it takes place. A distinction is also made between liner trade and non-liner trade. It was recognised that in non-liner trade ``recurse to arbitration under charterparties and charterparty bills of lading was not common``, whereas the liner industry ``had never made broad use of arbitration``. Article 75 permits the parties to refer any dispute that may arise relating to the carriage of goods under the Rotterdam Rules to arbitration. The key question is where that arbitration takes place. To a large extent mirroring the provisions on court jurisdiction, Chapter 15 again draws a distinction between volume contract and other contracts. The parties may agree to resolve a dispute by arbitration in any place after a dispute has arisen. Article 76 provides that nothing in the Rotterdam Rules affects the enforceability of an arbitration clause in a contract of carriage in non-liner transportation to which the Rotterdam Rules apply either because of article 7 of the Rules or because the parties have voluntarily incorporated them into a contract to which the Rules would not otherwise apply. However, if the Rotterdam Rules apply to a transport document or electronic transport record in non-liner transportation under article 7 of the Rules, an arbitration agreement in that contract will be subject to Chapter 15, unless it identifies the parties to and the date of the charterparty or other contract excluded from the application of the rules under Article 6; and incorporates by specific reference the clause in the charterparty or other contract that contains the terms of the arbitration agreement.

해상운송물의 고유한 하자 및 숨은 하자에 따른 입증책임

양석완 ( Seok Wan Yang ) 안암법학회 2012 안암 법학 Vol.0 No.38

A carrier is not liable at common law for loss or damage which results exclusively from some inherent quality or latent defect of the cargo carried. Every marine cargo case for lost or damaged goods starts with the so-called ``prima facie case.`` Even though a clean bill of lading had been issued, the carrier would not be estopped from pleading the exception providing that the loss had resulted from the inherent unfitness of the cargo to withstand the ordinary incidents of the voyage and had in no way been aggravated by the conduct of the carrier. No peril is an ``act of God``, ``restraint of princes``, or ``danger of the sea`` if its occurrence could have been avoided by the exercise of reasonable care. However, in ``Inherent Vice and Latent Defect``, the degree of care expected of the carrier will, of course, vary depending on the extent of his knowledge of the characteristics of the particular cargo. Hague-Visby Rules imposes some specific obligations about how the carrier must perform its contract, for example, and detail some of the legal consequences of the carrier`s failure to perform, but it does not explicitly declare the carrier`s most basic obligation simply to perform the core contract. There then followed the relationship between inherent vice exemption liability and carrier`s implied undertakings not to do undutifully and not to make a ship unseaworthy. Onus of proof between the carrier and the cargo owner is finally considered. However, the Rotterdam Rules` treatment of carrier`s obligations begins by making explicit what the Hague-Visby Rules leaves implicit. Pursuant to article 17(5) of the Rotterdam Rules the shipper can prove that the damage, loss or delay was probably caused or contributed by the unseaworthiness of the ship. It employs what has often been described as a ``reversed burden of proof``, meaning that carrier (typically the defendant) must disprove its fault in order to escape liability (once the claimant has established a prima facie case). This differs from the allocation commonly employed in many jurisdictions to determine fault-based liability under which the plaintiff must prove the defendant`s fault as part of its affirmative case in order to recover.

연구논문(硏究論文) : 해상운송인의 정액배상주의에 관한 비교법적 검토 -상법 제815조가 준용하는 제137조의 의미와 법적 성격에 대한 논의를 중심으로-

양석완 ( Seok Wan Yang ) 한국해법학회 2014 韓國海法學會誌 Vol.36 No.1

상법 해상(海商)편과 달리 육상운송에 관한 상행위 편에 있어서는 의용상법과 같이 정액배상주의 규정인 상법 제137조가 육상운송인의 책임제한 규정으로서 기능하고 있음은 주지의 사실이다. 1962년의 상법의 제정당시 이미 영국 등이 비준하고 있던 헤이그 규칙(선하증권 통일협약)1)과 1956년 유럽 제국간의 CMR(국제도로물건운송협약)에 있어서, 당시의 우리나라의 상법에는 없는 ‘포장당 책임제한(package limitation)’에 의한 운송인의 개별적 책임제한이 법정되어 있었던 점, 그리고 국제해상물건운송계약의 실무상으로도 선하증권 약관에 의한 책임제한이 광범위하게 사용되고 있었던 점 등을 감안한다면, 육상운송에 있어서도 운송인을 위한 책임제한의 규정이 있을 수밖에 없고, 그 목적에 가장 적합한 상법 제137조의 해석에 반영되어 온 것은 충분히 이해할 수 있다. 그러나 상법 해상편 제815조(당시 제812조)의 준용 규정은 헤이그 비스비 규칙을 수용한 1991년의 개정 이후에도 제137조를 그대로 준용하고 있었기 때문에 해상운송에 있어서도 육상운송과 기본적으로는 동일한 취지의 규정이라고 고찰되고 있었던 데 대하여는 납득하기기 어렵다. 즉 해상 물건운송인의 책임범위에 따른 상법 제815조에 의한 제137조의 준용에 있어서 특히 해상과 육상이라고 하는 수송 방식상의 차이, 그리고 중량당, 포장당 책임제한의 도입에 의한 육상운송과 대비되는 해상물건운송인의 책임한도의 변경을 염두에 둔 논의는 전혀 이루어지지 않고, 종래의 육상운송에 관한 상법 제137조의 해석론이 그대로 1991년 개정 상법 이후의 해상물건운송에 있어서도 전개되었던 데 연유하고 있기 때문이다. 따라서 헤이그 비스비 규칙을 수용한 1991년 개정 상법 이후부터는 상법 해상편 제815조(당시 제812조)에 의해 준용되는 제137조는 그 규정의 취지를 육상운송의 경우와는 달리 보아야 할 것으로 사료된다. 그 규정은 물론 1962년의 상법의 제정 당초부터 규정되고 있었지만, 국제협약상으로는 1968년 헤이그 비스비 규칙 제4조 제5항 (b)에 의하여 추가된 것으로서, 우리나라가 헤이그 비스비 규칙을 수용하여 해상편의 개정작업이 이루어지면서부터는 그 입법취지가 당초와는 달라진 것으로 주목받기에 충분하다. 말하자면, 상법 제815조가 준용하는 제137조의 별도의 조항에서 “제1항과 제2항에 의해 산정된 액을 초과한 배상의무를 부담하지 않는다”는 것을 명시한 조항이 없는 이상, 책임제한의 규정이 아니라 손해액의 산정방법으로서 일반적인 원칙을 명시한 규정이라고 보는 것이 국제규준에 맞는다고 본다. 요컨대, 달리 운송인 보호의 규정이 없었던 육상운송에 관한 상행위 편에 있어서는 상법 제137조를 두고 운송인 보호의 규정이라고 자리매김하는 통설에 의미가 있다고 하더라도, 개별적 책임제한 제도를 채용한 해상 편에 있어서 상법 제815조에 의해 준용되는 제137조의 규정을 육상운송과 마찬가지로 운송인보호를 위한 정액배상의 책임제한의 규정으로 본다면, 동일한 법률 가운데 책임제한의 규정이 중복하여 존재하는 것이라고 할 수 있고, 그 양자의 관계성 내지 중복하여 존재할 필요성에 관해서도 명백하게 검토되어야 할 것이다. 이에 이 논문에서는 1991년 개정 상법 이후부터는 해상편 제815조에 의해 준용되는 제137조의 규정은 그 입법취지를 육상운송의 경우와는 달리보아야 할 것은 아닌가 하는 데 주목하고, 그 규정의 유래를 의용상법과 헤이그 비스비 규칙을 비롯한 국제규칙을 토대로 더듬어 본 다음, 그 규정의 성격을 책임제한 규정인가, 운송인보호 규정인가, 정액화 규정인가하는 세 가지 문제를 쟁점으로 삼아 비교법적인 분석을 함으로써 새로운 해석론을 모색하고자 한다. The carrier is liable for damages sustained in the event of the destination or loss of, damage to any goods, if the destruction which caused the damage so sustained took place during the carriage by sea. If a carrier fails to prove that he or the crew or other employee of a ship exercised his duty of care in reception, loading, stowage, carriage, keeping, discharging and delivering of the goods, he shall be liable to compensate for damages caused by loss, damage or delay in delivery of the goods. If the goods have been lost totally or have been delayed in delivery in arrival, the amount of damages shall be determined by the market value prevailing at the destination on the day on which they were delivered. In case of a partial loss of or injury to the goods, the amount of damages shall be determined by the value prevailing at the destination on the way on which they were delivered. Where the loss, injury and delay in delivery in arrival of the goods have arisen from the intention of or gross negligence of the carrier, he shall be liable for all damages under the Article 137 of the Korean Commercial Code. Article 137 declares the ‘arrived value’ principle, which means that― in order to calculate the value of the performance that a consignee should have received under the contract of carriage―the decision maker looks to the value that the goods would have had if they had arrived safely at the contractually agreed place of delivery when they were supposed to arrived there. This mirrors the existing practice as well as the legal framework provided for by Article 4(5)(b) of the Hague Visby Rules. Article 137 does not expressly mention limitation of liability, but its purpose seems to unify the rules generally followed to calculate damages in case of loss or damage or delay in delivery of the goods carried by sea. The amounts calculated by this formula are not a ‘forfeit’ compensation. The exclusion of consequential damages is not an issue of limitation but rather than an issue of measure of damages. The cargo interests must prove that they have actually suffered loss or damage up to this amount. If Article 137 (5) will clarify what was not applied in a uniform manner under Article 4(5)(b) of the Hague Visby Rules-the compensation calculated by applying the formula of Article 137 (1) and (2) is effectively a limitation of liability because no compensation higher than the amounts calculated pursuant to Article 137 can be claimed by the cargo interests.

운송인의 인도지연 책임에 관한 법적 쟁점 -로테르담 규칙을 바탕으로-

양석완 ( Seok Wan Yang ) 한국상사판례학회 2013 상사판례연구 Vol.26 No.2

Delay was on the agenda from the beginning of the UNCITRAL process. ``Delay in delivery`` is limited to the carrier`s failure to deliver ``within the time agreed`` in the contract of carriage. Thus the carrier is not liable for failing to deliver the goods ``within the time it would be reasonable to expect of a diligent carrier``, as UNCITRAL had initially agreed. The Rotterdam Rules` delay provisions instead focus on economic loss (consequential damages), which can arise in a number of different forms. It is restricted to loss (economic loss) as a result of not delivering the cargo at the agreed place of destination at the agreed time. The most common form of is a simple loss of market. The agreement need not be explicit. The difference is quite important because the rules on the calculation of the compensation and limitations of liability are quite different: first, whereas compensation for loss and damage are dealt with by using the formula of the sound market value, no such formula exists in case of delay. What is the extent of the compensation for delay? Although it is clear that the loss would most probably be of a financial nature, it is not clarified in the text how far in terms of proximity and predictability it is possible to go in calculating compensation for delay. Such economic loss can easily be many times the value of the goods delayed. That is why article 60 provides that the amounts established for physical loss and damage pursuant article 22 shall also function as a limit for economic and financial loss caused by delay. In contrast to physical damage, however, this loss of limitation does not apply to the limitation amount of two and one-half the freight only, but due to the reference to article 22 is in article 60, also to the sound market value limitation.

해상법상 어선의 법적 지위에 관한 연구

양석완 ( Yang Seok-wan ) 제주대학교 법과정책연구원 2016 法과 政策 Vol.22 No.2

Fishing vessel personnel responsible for the navigation and operation of fishing vessels should possess sufficient knowledge of the rules and regulations or agreements affecting fishing in the fishing vessel``s area of operation, particular attention should be paid to the 8(f) of International Regulations for Preventing Collisions at Sea, 1972 in 1987 revision. A vessel engaged in fishing, whether underway or at anchor, shall exhibit only the lights and shapes prescribed in 1972 COLREG. And the term ‘vessel engaged in fishing’ means any vessel fishing with nets, lines, trawls or other fishing apparatus which restrict manoeuverability, but does not include a vessel fishing with trolling lines or other fishing apparatus which do not restrict manoeuverability. A vessel which, by any of these rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other. A vessel proceeding along the course of a narrow channel or traffic separation schemes shall keep as near to the outer limit or the channel or fairway of traffic separation schemes which lies on her starboard side as is safe and practicable.

상법상 매수인의 검사,통지의무에 관한 법적 쟁점

양석완 ( Seok Wan Yang ) 한국상사판례학회 2010 상사판례연구 Vol.23 No.4

The Buyer Must examine the goods and give notice of the lack of conformity, if any, to the seller in order to retain his right to rely on the fact. The concept of the lack of conformity contains the conformity of quality, quantity, description, delivery of different goods and documents. The buyer`s examination of goods forms the basis of his obligation to notify the seller of defects under Article 69 in the Korean Commercial Code. And the obligation to examine the goods can give seller the second opportunity to complete his duty fully, if possible, by delivering the missing goods or substitute goods, by repair, or by reducing the buyer`s loss in some other way. As the determining of `without delay` in Article 69(1) is depending on the circumstances concerned with the particular case. So the term `without delay` has proven too imprecise due to its flexibility without defined uniform scale to assist the practitioners in a uniform application of Art. 69(1). Article 69(1) is silent about the method the buyer should employ in examining the goods. In general, the manner of inspection will depend on the parties`s agreement, trade usages and practices in the absence of such indicators, a reasonable examination, through and professional examination is required. When determining which requirement must be satisfied by the buyer is specifying the nature of any lack of conformity, a mixed objective-subjective standard should be applied, which has regard to the respective commercial situation of the buyer and seller, to any cultural differences, but above all, to the nature of the goods. The purpose of the Article 69(1) deadline for examination and notice of the lack of conformity is to allow the buyer an opportunity to discover defects before the buyer resells, and permit prompt clarification of whether the buyer accepts the goods as conforming.