복합운송계약과 그 준거법의 결정

최성수(Choi Sung Soo) 중앙대학교 법학연구원 2013 法學論文集 Vol.37 No.2

International transport has a high proportion in international commerce. In international transport, there are land transport, maritime transport and air transport, and multimodal transport combines two or more of these means of transport. Multimodal transport-related disputes can be resolved by international arbitration or international litigation, if international lawsuit is issued, the problem of determining of the international jurisdiction and the applicable law will be arisen. In this paper, we deal with the law applicable to the multimodal transport that is now discussing the amendments in the Korean Commercial Code. On the process of reviewing the law applicable to the multimodal transport contract, first we review the applicable law of the general maritime carriage contract. Especially most of the international transportation includes the maritime transport alone or as part of a multimodal transport, in this paper, we review the applicable law to the charter party and bill of lading, which is closely related to the maritime transportation. Multimodal transport contract agreement is a kind of the contract, so we review the law applicable to the general contract theory. The discussion of Korean Commercial Code revision of multimodal transport clause also will be briefly mentioned. The revision of the Commercial Code relating to multimodal transport is under operation, so if the applicable law is determined by the laws of the Republic of Korea, the substantive content can be differently determined. In this point, the choice of the network liability system is important in conjunction with the contents of the applicable law. It is urgent to pass the multimodal transport related bill, so that, if the applicable law to the multimodal transport is specified by the Republic of Korea, the law can fulfill the international standard of multimodal transport.

복합운송인의 책임에 관한 개정 상법규정의 검토

최성수(Choi Sung-Soo) 동아대학교 법학연구소 2008 東亞法學 Vol.- No.42

Although, through international efforts, a unified convention that will regulate international multimodal transport (United Nations Convention on International Multimodal Transport of Goods, 1980) has been adopted, it is not yet in effect. Furthermore, since definitions of international multimodal transport in each country have not been unified, and different statutes govern individual transportation transactions in practices, confused situations have increased. At present, multimodal transport is regulated by general terms and conditions (standard transport bill of lading form or uniform rules presented by dominant private groups such as FIATA, BIMCO, ICC), not by unified statutes. As Korea didn’t have systematic legislation, there was a preceding necessity to properly establish domestic legislation, which would lead to the systematization of legal issues that involve multimodal transport. As such, in a situation that required efforts to improve the safety of international multimodal transport and the efficiency of operation of the system and to prepare for legal disputes, new provisions governing the liabilities of multimodal transport operators were revamped in Article 816, Section 5 “Marine Commerce”, Commercial Code based on the existing legislative theories. More specifically, the revised Commercial Code that referred to the UN Convention on International Multimodal Transport of Goods, 1980 stipulates that multimodal transport operators take liabilities according to the laws which would apply to the transport section in which damages or loss occurred (declaration of network liability system), or take liabilities according to the laws which would apply to the main transport section if the section in which damages or loss occurred is unclear, and they take secondary liabilities according to the laws which would apply to such sections for which freight rates are the highest. The efforts to regulate the multimodal transport, though domestically, to prevent any confusion were desirable. However, it is difficult to effectively govern the complicated legal issues of international multimodal transport with the simple one article of Commercial Code. Accordingly, it is necessary to have detailed provisions throughout multimodal transport. According to the added provisions, only when the main section is determined, applicable principles and coverage of liabilities come out. Moreover, sometimes judgment by the court may be required to determine the main section. Accordingly, rather than giving an answer to a question in a way of leaving room for interpretation, it is required to reconsider the provisions so as to anticipate the coverage of liabilities by setting liability criteria clearly. Furthermore, as the methodology to determine unclear accident sections, it is suggested to consider properly referring to one of marine related transport conventions or setting limitations of liability of the operators under the Korean Commercial Code. In terms of the legislative system, it is suggested to consider establishing a chapter that includes land transportation as well as marine transportation in the Section “Commercial Activities”. Tentatively, it is possible to establish a separate part in the next of the part “Maritime Transportation”, but it is desirable to consider to enact an independent act that only covers multimodal transport. In addition, when considering the principles and period of liabilities in multimodal transport and the owner and coverage of liabilities, it is necessary to continuously explore what is the best way to treat interested parties fairly so as to reflect it into legislation.

복합운송규제법에 관한 재검토

이장기(Lee Jangki) 호남대학교 인문사회과학연구소 2004 人文社會科學硏究 Vol.11 No.-

본 연구는 복합운송에 관한 규정을 국제적으로 통일하려는 시도로 1980년에 제정되었지만, 아직도 발효되지 못한 UN복합운송조약(UN Convention on International Transport of Goods : MT 조약)과 MT조약이 발효할 때까지 사용할 목적으로 UNCTAD / ICC합동작업반이 마련하여 실무에서 가장 널리 사용되고 있는 표준계약조건(standard contractual terms)인 UNCTAD/ICC복합운송증권규칙(UNCTAD/ICC Rules for Multimodal Transport Document 1992:UNCTAD/ICC 규칙), 그리고 복합운송에 관한 지역적 협정인 ASEN복합운송협정서초안(Draft ASEAN Frame-work Agreement on Multimodal Transport : ASEN 초안)과 중국의 복합운송에 관한 법률과 규정인 1993년의 해상법(The Maritime Code, 1993)과 1997년의 컨테이너에 의한 물품의 국제복합운송에 관한 규정(Regulations governing International Multimodal Transport of Goods by Containers, 1997) 및 1999년의 계약법 17장 제4절: 복합운송계약(The Contract Law, 1999)을 검토하여 보았다. 국제복합운송의 지속적인 성장에 비추어 볼 때, 복합운송 분야에서 국제적으로 합의된 기준이 마련되지 못함으로써 야기되는 복합운송의 발전의 저해 요인을 극복하려면, 복합운송을 규제하는 효과적인 국제적 수단을 제정하기 위한 국제적인 조정과 협력이 필수적임을 고찰하였다. This study reviews about some existing laws and regulations governing multimodal transportation to find out a way to establish a uniform legal framework governing multimodal transport. They are UN Convention on International Transport of Goods 1980, UNCTAD/ICC Rules for Multimodal Transport Document 1992, Draft ASEAN Framework Agreement on Multimodal Transport 2001 and the laws and regulations governing multimodal transport in China(The Maritime Code, 1993, Chapter Ⅳ, Section 8: Special Provisions regarding Multimodal Transport Contract, Regulations governing International Multimodal Transport of Goods by Containers, 1997 and The Contract Law, 1999, Chapter 17, Section 4: Contract for Multimodal Transportation). International coordination and cooperation are essential in order to arrive at a widely acceptable solution since the nature and scope of any possible course of action would need to be decided at a global level and with the involvement and participation of all interested parties.

복합운송에 관한 상법규정의 신설

김창준 ( Chang Joon Kim ) 한국해법학회 2004 韓國海法學會誌 Vol.26 No.2

The UN Convention on International Multimodal Transport of Goods 1980 has not yet become effective. Further it is known that there are only three countries which have incorporated into their domestic laws the provisions as to multimodal transport. As a result thereof international multimodal transport which has become the dominant mode of international transport nowadays is being regulated by the general terms of FIATA B/L prepared pursuant to UNCTAD/ICC Rules. However, the regulation of multimodal transport based on FIATA B/L may not be considered stable or complete because some of the terms of FIATA B/L may be found to be in contravention of the compulsorily applicable domestic laws or international conventions by local courts. As an attempt to lead the industry of multimodal transport of Korea the amendment of the Korean Commercial Code has been considered by the Korea Maritime Law Association. This article explains the basic principles contained in the draft amendment of the Korean Commercial Code which has been discussed in the Korea Maritime Law Association and the analyses of each Article of the draft amendment.

한일간 카-훼리 국제복합운송에 따른 不明損害에 관한 연구

박상갑(Sang-Kab Park),김정호(Jung-Ho Kim) 한국항해항만학회 2011 한국항해항만학회지 Vol.35 No.6

급속한 세계화와 블록경제체제는 한ㆍ일간의 교역을 크게 확대시켜 취급품목도 경공업분야로부터 중공업분야까지 다양하게 증대되었다. 이러한 국제교역의 확대는 원활한 운송시스템을 필요하게 되었고, 특히 한ㆍ일간 기계류나 호화 요트와 같은 특수화물에 대한 운송수 요로 카-훼리 국제복합운송체제가 발전하게 되었다. 카-훼리 국제복합운송은 “문전에서 문전까지”라는 하주의 욕구를 충족시켜 주지만 그로 인해 불명손해의 클레임을 야기시킨다. 본 논문의 목적은 한ㆍ일간 카-훼리 국제복합운송에 따른 불명손해의 원인과 문제점을 규명하여 합리적인 책임배분에 의한 대응방안을 모색해 한ㆍ일간 카-훼리 국제복합운송의 지속적인 발전을 도모함에 있다. The recent increase in international car-ferry lines between Korea and Japan as well as China brings needs for proper transportations of special cargo, such as machinery and luxury yacht, etc. International multimodal transport, especially international car ferry through truck-sea-truck system enables to fulfill shippers’ needs for “Door to Door Service”, of such special goods. However, this international multimodal transport of bulk cargo will cause a possible claim for concealed damages during such transportation. For this reason, this study aims to examine the liability system of the multimodal transport operator as well as to investigate liability for concealed damages theoretically and finally to seek proper measures for them. Futhermore, this paper intends to verify the claims for concealed damages to further the international multimodal transport by car ferries between Korea and Japan.

미국과 한국의 복합운송 전개와 시사점 : 미국 철도운송을 중심으로

정재우,김희철 한국무역통상학회 2019 무역통상학회지 Vol.19 No.6

This article relates the current status of rail-oriented international multimodal transport between the United States and South Korea. For this article, the issue will be on rail freight transport of United States of America as this mode is the most important mode for North America. Most of all, the objective of this paper is to provide a first approximation of the rail freight infrastructure developments and improvements in the continental United States rail network. So the methodology of this paper is to conduct comparative analysis with United States and South Korea in terms of GDP, trade volume, the current status of container terminal, the implementation of international multimodal transport. United States is well established in the field of rail transportation network. But South Korea has a very strong competitiveness in the field of road transportation.

복합운송에 관한 2011년 상법개정안의 비판적 검토

정준우(Chung, Joon Woo) 인하대학교 법학연구소 2011 法學硏究 Vol.14 No.2

복합운송은 육상운송(도로운송ㆍ철도운송ㆍ내수로운송)ㆍ해상운송ㆍ항공운송 중 2개 이상의 운송수단에 의해 복합적으로 이루어지는 운송인데, 이는 20세기 후반에 들어와 운송용기인 컨테이너의 이용이 일반화 되면서 특히 국제물건운송에서 보편화 되었다. 즉 국제물건운송의 경우에는 그 대부분이 ‘문전에서 문전으로(door to door)’ 그리고 컨테이너의 이용에 따라 복합운송이 일반적으로 이루어지고 있었지만, 그동안 관련된 법규가 없어 복합운송에 관한 법률관계를 합리적으로 해결하지 못하였다. 이에 정부가 2007년 개정상법에 복합운송에 관한 제816조를 신설하였으나, 단 하나의 조문에 불과하여 복합운송에 관련된 복잡한 법률관계를 제대로 해결할 수 없었다. 그리하여 정부는 2010년의 입법예고를 거쳐 2011년 3월에 복합운송에 관한 상법개정안을 국회에 제출하였다. 정부가 복합운송에 관한 규정을 상법에 적극적으로 도입하려는 것은 오늘날의 물류운송에서는 컨테이너의 개발로 인해 육상운송ㆍ해상운송ㆍ항공운송을 통합적으로 연결하는 복합운송이 일반화 되었음에도 불구하고 그 법률관계를 규율할 법규가 충분하지 못하여 화주와 운송인간의 법률관계가 명확하지 못하고, 운송사고가 발생한 경우에도 신속한 분쟁해결을 기대하기 어려웠기 때문이다. 그리고 복합운송에 관한 규정을 상법에 확대하여 신설함으로써 복합운송에 관한 법률관계의 안정성과 당사자의 예측가능성을 제고하며, 물류산업의 발전을 위한 제도적 기반을 마련하기 위함이다. 이러한 이유에서 2011년 상법개정안은 구체적으로 제5편 해상에 있던 복합운송인의 책임에 관한 제816조를 삭제하면서, 제2편(상행위) 제9장(운송업)에 제2절을 신설한 후 제150조의2부터 제150조의10에 걸쳐 복합운송에 관한 상세한 규정을 두고 있다. 그렇지만 복합운송에 관한 규정을 확대ㆍ개편하는 2011년 상법개정안에 대해서는 졸속한 입법이라는 비판과 함께 조문 각각의 구체적인 내용에 대해서도 다양한 비판이 가해지고 있다. 따라서 이 논문에서는 복합운송에 관한 2011년 상법개정안의 주요쟁점별로 그 내용과 문제점을 체계적으로 분석한 후 그에 대한 합리적인 대안을 제시하였다. The Ministry of Justice of the Republic of Korea launched a research program to make a proposal on the law governing combined transport in the Commercial Code during the year of 2010. In November 2010, according to the research paper, the Ministry of Justice has announced to the legislative notice of the Bill to revise the Commercial Code for multimodal transport regulation and proposed the Bill to the Nation Assembly in 2011. The 2011 Bill for the multimodal transport contained 9 provisions such as the concept of multimodal transport contract, a multimodal transport policy, limitation of liability of multimodal transport carrier, obligation of the consignee, reduction and exemption for multimodal transport carrier"s liability including the prohibition etc. The 2011 Bill for Multimodal Transport adopted the network liability system such as §816 under the Revised Commercial Code 2007. Under the 2011 Bill, in cases where a transport section, other than marine transport, has been included in the transport which a carrier accepted, he shall take the responsibility in accordance with an Act applicable to the transport section where the damage has occurred(§150-4(1)), and in cases where it is unclear in which transport section the damage has occurred or the occurrence of the damage is not limited to any particular area in its nature, a carrier shall take the responsibility in accordance with an Act applicable to the transport section of which distance is the longest(§150-4(2)). Under the 2011 Bill for multimodal transport, the multimodal transport carrier is allowed to limit its liability in an amount of 666.67 SDR per package or 2 SDR per kilogram weight of goods lost or damaged, whichever is the higher. The 2011 Bill can be appraised to be beneficial for the carrier and the consignor as well because it provides predictability for them. The 2011 Bill for the Multimodal Transport Regulation, however, has many legal problems in a multimodal transport policy, limitation of liability of multimodal transport carrier, obligation of the consignee etc.. In this paper, thus, I have investigated the legal problems of provisions of the 2011 Bill and suggested the measures for Improvement on the Legal Problems of the 2011 Bill for the multimodal transport regulation.

복합운송서류의 국제표준은행관행

박석재(Park SukJae),박광서(Park KwangSo) 한국해양비즈니스학회 2004 해양비즈니스 Vol.- No.3

Multimodal Transport Documents have been widely used in the international sale of goods since 1970"s. So, ISBP has twelve provisions regarding the multimodal transport documents as follows ; Application of UCP Article 26, Full set of originals, Signing of multimodal transport documents, On board notations, Place of taking in charge, dispatch, loading on board and destination, Consignee, order party, shipper and endorsement, notify party, Transhipment and partial shipment, Clean multimodal transport documents, Goods description, Corrections and alterations, Freight and additional costs, Goods covered by more than one multimodal transport documents etc.. The ISBP is a practical complement to UCP 500. It explains how the rules are to be applied on a day-to-day basis. As such, it fills a needed gap between the general principles announced in the rules and the daily work of the documentary credit practitioner. Consequently, all parties concerned with documentary credits need to armour themselves with knowledge for ISBP. Also, it should be noted that any term in a documentary credit which modifies or affects the applicability of a provision of the UCP may also have an impact on international standard banking practice. Therefore, in considering the practices described in this publication, parties must take into account any term in a documentary credit that expressly excludes or modifies a provision in an article of the UCP.

국제운송시장에서 전자상거래로 인한 복합운송인의 변화에 관한 고찰

조성원 경주대학교 정보전자기술연구소 2002 情報電子技術論叢 Vol.1 No.-

In recent years, the literatures on electronic commerce and electronic marketplace have recognized the importance of intermediaries and the functions they serve. This study also reveals the multimodal carrier as intermediaries in international multimodal transportation market, because it has been widely stated that structural changes in international transportation markets, such as dismultimodal carriers, would occur due to the impact of electronic trade and electronic information exchange. But these statements are oversimplified and exaggerated as argued by Sarkar, Butler and Steinfield, because different outcomes changed by dismultimodal carrier are possible, such as cyber-multimodal carriers, direct multimodal carriers supplemented by electronic commercem and re-multimodal carriers as off-line carrrier. Accordingly this paper attempts to explan the model developed by Sarkar et at., by applying the model to international multimodal transprotation market. In this paper, it is explan that a understanding of the evolutionary impact of electronic commerce on existing international transportation market structures and multimodal carrier roles is reached by taken into account both theoretical approach and case studies concerned.

국제복합운송 실제운송인의 기업이미지, 고객가치, 고객충성도의 관계에 관한 실증연구

한능호(Neung-ho Han),이승택(Seoung-taek Lee) 한국해양비즈니스학회 2014 해양비즈니스 Vol.- No.29

While the globalization of logistics such as procurement logistics, product production and sales logistics has been being accelerated as the global competition is infinitely increasing, special attention is being paid to the international multimodal transport linking maritime transport, air transport and others. In this study, an empirical analysis was conducted to investigate the relationship among corporate image, customer value and customer loyalty of the international intermodal actual carrier. As the result of the study, it could be realized through the verification of the Hypothesis 1 that the corporate behavior image and the social action image of three factors comprising the corporate image give a positive effect on the customer loyalty, but the corporate contribution image does not indicate a statistically significant effect on the customer loyalty, which says that the factors comprising the corporate behavior image and the social behavior image give affection on the evaluation of the customer value of the international freight forwarder. In addition, through the verification of Hypothesis 2, this study clarified that the relationship between the customer value and the customer loyalty is in effect. Through this study, the corporate image promotion factors, customer value and customer loyalty will be able to be managed effectively.