정기용선의 외부 관계에 대한 소고

다국어 초록 (Multilingual Abstract)

As to the external relationship for the Time Charter, some views had tried to figure out the legal character of the Time Charter before deciding who is liable for the damage arising under the Time Charter. When it was clear what is the legal character of the Time Charter, the said views directly applied the legal character to the external relationship for the Time Charter. However, even with this method it is still not obvious who is liable for the damage. Opinions on the legal character for the Time Charter seem to look at only one side of the legal characters and economic functions of the Time Charter and they look like totally failed to understand the real meaning of the Time Charter. In writter’s view, the Time Charter is one which has the legal factors of the Bareboat Charter, supply of the labor powers, and rent of vessels for the enterprise of a shipping company. Therefore the Time Charter seems to be a special and complex contract composed of characters of different contracts for the use of vessels owned by others. In this regard, the above mentioned method is not recommendable for the exploration of legal meaning of the Time Charter. Instead of using the conventional way, we should regard the matters for the determination of entities who is responsible for the third party’s damage under the Time Charter as determination of the identity of the carrier, and decide who is liable for the third party’s damage under Time Charter with case by case method with the tort law principles. Thus, Korean Supreme Court’s view that Article 850(1) of Korean Commercial Code should be analogically applied to the matters for the determination of the entities for the third party’s damage under the Time Charter and the Time Charterer is the one who is liable for the damage should be revised. On the other hand, even if in conclusion the writter agrees with Korean Supreme Court’s views on determination of the legal entity who will be responsible for the damage to the third party caused by the collision of time chartered vessel at sea, the Owner, Korean Supreme Court should have held in writter’s opinion that liability for the damage to the third party caused by the collision with time chartered vessel was strict liability recognized by Korean Commercial Code and the Owner was only liable for the damage to the third party because the Owner had control over the source of risk, the time chartered vessel. In addition, with the respondeat superior theory in Korean Civil Code, Korean Suprem Court should have addressed that the Owner of the time chartered vessel had a substantially directed and supervised the crews of the vessel exclusively and therefore the Owner was liable for the damage to the third party in collision case.

목차 (Table of Contents)

• Ⅰ. 들어가며
• Ⅱ. 정기용선계약의 법적 성질과 외부 관계
• Ⅲ. 정기용선의 외부 관계
• Ⅳ. 맺으면서
• 참고문헌
• Abstract

참고문헌 (Reference)

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• 2 최종현, "해상법상론" 박영사 2009
• 3 최기원, "해상법(제3판)" 박영사 2002
• 4 정동윤, "주석상법Ⅷ" 한국사법행정학회
• 5 심재두, "정기용선자의 제3자에 대한 책임 (대법원 1992. 2. 25. 선고 91다14215판결평석)" 16 (16): 1994
• 6 김동훈, "정기용선의 외부적 법률관계에 관한 소고" 13 (13): 1991
• 7 김동훈, "정기용선계약하의 선하증권 소지인에 대한 선주와 용선자의 책임관계" 11 (11): 1990
• 8 최종현, "정기용선계약의 대외적 법률관계" 박영사 4 :
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• 10 임동철, "정기용선계약과 선주ㆍ용선자의 대외적 책임에 관하여" 8 (8): 1986
• 11 이승호, "정기용선 선장의 불법행위에 대한 선주의 책임 (대법원 2003.8.22.선고 2001다65977판결)" 한국해법학회 26 (26): 197-213, 2004
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• 15 채이식, "상법 Ⅳ－보험법ㆍ해상법" 박영사 2001
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• 17 곽윤직, "민법주해[Ⅰ]" 박영사
• 18 Terence Coghlin, "Time Charter, 6th Ed" informa 2008
• 19 D. Rhodian Thomas, "Legal Issues Related To Time Charterparties" informa 2008
• 20 E. R. Hardy Ivamy, "Hardy Ivamy, Carriage of Goods by Sea, Twelfth Ed" Butterworths 1985
• 21 Thomas J. Schoenbaum, "Admiralty and Maritime Law, 3rd Ed" West Group