복합운송에 관한 2015년 상법개정안에 대한 비판적 검토

Abstract

The revision of the Commercial Code, which was initiated in 2010 by the Ministry of Justice, has been referred to the National Assembly's Legislation and Judiciary Committee. However, it still remains unknown when the deliberation will begin. The revised bill brings confusion to the organization and definitions of the code by putting multimodal transport under Part II, which makes the attempted revision less than advisable despite the fact that it does not make much difference in regulating legal relations. The Commercial Code covers land transport, maritime transport and air transport in the order mentioned. Multimodal transport refers to the transportation of goods performed with at least two different means of transport under a single contract. Therefore, it is appropriate to handle multimodal transport after air transport in the same part. The Ministry of Justice may have felt that it is excessive to create another part, Part VII, on multimodal transport, since the current code in force already has two parts dedicated to transport. If that had been the case, the revised bill should have put all modes of transport - land, maritime, air and multimodal - in Part V on transport. It would be more desirable to eventually establish a separate special law on transport that encompasses land, maritime, air and multimodal transport. The most outstanding problem in the revised bill lies in the clause 2 of Article 150-5. In Korea, the longest section in a multimodal transport contract is likely to be maritime. Taking the circumstances into consideration, the revised bill puts the smallest burden of loss on carriers. Such a clause does not only run counter to the times but is also against legal equity. It is theoretically reasonable to put the heaviest burden on carriers when the point of loss is unclear, since the burden of proof is on carriers. Therefore, it is desirable to delete the clause 2 of Article 150-5, which uses the delivery distance as the standard in determining liability in cases where the point of loss is unclear. Now is time to discuss the revision of the Commercial Code in more depth, since the National Assembly has not yet begun deliberation on the pending revised bill.