복합운송인의 책임에 관한 개정 상법규정의 검토 = Review of Provisions Regarding the Liabilities of Multimodal Transport Operators under the Revised Korean Commercial Code

다국어 초록 (Multilingual Abstract)

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.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 복합운송인의 책임제도
• Ⅲ. 각 운송법규상 책임주체
• Ⅳ. 각 운송법규상 책임기간
• Ⅴ. 각 운송법규상 책임원칙
• Ⅵ. 각 운송법규상 책임범위
• Ⅶ. 상법 제816조에 대한 검토
• Ⅷ. 결론
• 참고문헌
• 〈Abstract〉

참고문헌 (Reference)

1 정영석, "해상운송법강의" 국제해양문제연구소 2001

2 임동철, "해상법·국제운송법연구" 효성출판사 1999

3 최재선, "해상법 개정방향과 주요쟁점" 2005

4 서헌제, "콘테이너복합운송인의 책임법리" 삼지원 1986

5 정영석, "운송인책임제한의 기준으로서 포장 또는 선적단위의 개념" 한국해사법학회 2004

6 정찬형, "상법강의(하)" 박영사 2007

7 정찬형, "상법강의(상)" 박영사 2003

8 "상법 일부개정법률안 심사보고서" 국회법제사법위원장 2007

9 현재호, "복합운송인의 책임에 관한 연구" 건국대학교 2004

10 김창준, "복합운송에 관한 상법규정의 신설" 26 (26): 2004

11 김효신, "복합운송규정의 도입에 따른 법적 과제" 제20집 제3권 3 : 2007

12 김경종, "복합운송계약의 입법론적 연구" 단국대학교 1995

13 손주찬, "복합운송계약에 관한 입법론" 2004

14 김인현, "법무부 상법 해상편 복합운송 신설안에 대한 수정의견" (3548) : 2007

15 최준선, "국제항공운송에 관한 1999년 Montreal Convention에 대한 일고" (78) : 2004

16 최준선, "국제항공운송법론" 삼영사 1987

17 전삼현, "국제항공운송 책임조약의 통합에 관한 연구" 숭실대학교 1989

18 임동철, "국제운송법" 한국해사문제연구소 1994

19 임석민, "국제운송론" 삼영사 2007

20 이시환, "국제운송론" 대왕사 2005

21 엄윤대, "국제운송강론" 일진사 2006

22 Mankabady, "multimodal transport of goods convention: A challenge to unimodal transport convention" 32 : 1983

23 Wei Jia Ju, "UN Multimodal Transport Convention" 15 : 1981

24 Tory A. Weigand, "The Modernization of the Warsaw Convention and the New Liability Scheme for Claims Arising Out of International Flight" 86 : 2000

25 William J. Driscoll, "The Convention on International Multimodal Transport of Goods" 57 (57): 1982

26 Stephen Zamora, "Carrier Liability for Damage or Loss to Cargo in International Transport," 23 : 1975

27 김인현, "2007년 상법 해상편의 편제 및 복합운송에 대한 개정경위와 그 내용" 30 (30): 2008