船舶所有者의 責任制限制度에 關하여 = ON THE SYSTEM OF SHIPOWNER'S LIMITATION OF LIABILITY

다국어 초록 (Multilingual Abstract)

The chief aim and object of this treatise is attempted to illustrate the System of Shipowner's Limitation of Liability, not only in the view of New Korean Commercial Code but also of the Law of Continental Europe and Anglo-America, and International Conventions. In view of these considerations. I should like to explain as briefly and simply as possible the system of the historical changes and the main principles which underlie legal arrangements.
The New Commercial Code which contains the rules governing transactions of a commercial nature was promulgated on 22nd of January, 1962 and was to came into force on 1st of January, 1963. On the whole, the arrangement of New Commercial Code follows German system. expect for some system of Anglo-Americanism and International Conventionalism found in some places. The Code divides into five parts: the first contains the general rules; the second Acts of Commerce" the third "Companies"; the fouth "Insurance"; and the fifth "Martime Commerce".
The fifth part, Maritime Commercial Law, includes the System of Shipowner's Limitation of Liability that has been enacted in accordance with the system of "International Convention Relating to the Limitation of Liability of Owners of Sea-going Ships" in 1924. It is called" Conventionalism of 1924". consisting of "Werthaftungssystem" and "Summenhaftungssystem" in German law terms. In addition to these, the types of system have two more: "Exekutionssystem" and "Abandonsystem".
The treatise is consisted of five chapters. In hapter I. I chave endeavoured to explain between Maritime Commercial Law and the System of Shipowner's Limitation of Liability, and so this chapter occupies the preface of this treatise. In order to realize the aim and characteristics of this particular system, it may be useful to consider, in the first instance, what place it occupies as a branch of Martime Commercial Law.
In chapter II. I considered historically the systems of each period. It is divided into five parts: the Acient Ages and Roman Law, the Middle Ages, the Modern Ages, Angol-American Law, and the Present Ages. In historical Development of the Law on Limiting Liability of Shipower, both within the continental countries and Anglo-American countries we find four systems: (1) Abandonsystem, French, enacted by "Ordonnance de la marine", 1681. (2) Exekutionssystem, German, enacted by "Das Allgemeine Deutsche HGB", 1861. (3)Werthaftungssystem, North-American, enacted by "the American Shipowner's Limitation of Liability Statutes", 1851. (4) Summenhaftungssystem, English, originally enacted by "Merchant Shipping Act", 1862.
In chapter III. I described the formative progress of International Conventionalism, which had arisen towards the movements of international unification on limiting liability of shipowners. The progress of formation are divided into four periods; era of Speedy-Making(1885~1892), of "Comite′ Maritime International" conference(1897~1907), of "Internatinal diplomatic" conference (1909~1913), and of formation of international unification(1921~1957). The organizations contributed to the movements of unification are International Law Association, Comite′ Maritime International, and International Diplomatic Meeting. As the results of the effective unifying movements we can point out the so-called "International Covention Relating to the Limitation of the Liability of Owners of Sea-going Ships" in 1924, and 1957.
In Chapter IV. I have endeavoured to define what the theroretical bases of limiting liability of shipowners are. This chapter is divided into two parts: the first term (from the Middle Ages to the earlier Modern Ages ) and the second term (from the later Modern Ages to the Present Ages). According to the theories, I have distinguished the whole bases of argument of system into two: one is the theory recognizing the system, another is the theory denying the system. The later asserts that it should be substituted with the system of Liability Insurance.
In chapter V. I compared each merits and demerits of the all important systems on limiting liability of shipowners, and so it be comes the conclusion of this treatise.
Conclusion: Many changes have been made in the Law of Maritime Commercial. The most remarkable and important changes in the field of Maritime Commericial Law is found in the system of Limitation of Liability of Shipowners. Whereas the Old Code and Japanes Code followed the French system, Abandonssystem, the New Code adopted the Anglo-American system, Conventionalism of 1924. The Abnadonssystem has so many demerits from the points of view of law and economy that nowadays no country welcomes the system of old code. It is possibly because that it has theoretically been welcome by most of the well known lawyers and actually accepted by many countries, for our New Commercial Code to adopt the Conventionalism of 1924. Yet there may be many questions whether this new enacting will be reasonable and acceptable to our present conditions. From my opinion it still leaves the field of discussion on the present system and on the problem of rivival of Abandonssystem into our Commerical Code for the sake of protecting Shipowners.

목차 (Table of Contents)

• 第 1 章 머리말-海商法과 船舶所有者責任制限制度
• 第 2 章 船舶所有者 責任制限의 歷史的 變遷
• 第 3 章 船舶所有者 責任制限에 關한 統一條約法의 成立 經過
• 第 4 章 船舶所有者 責任制限의 理論的 基礎
• 第 5 章 船舶所有者 責任制限에 關한 立法主義의 比較-맺는말