상법 제5편(해상)에 사용되는 용어의 적절성

초록

There was a major revison to improve and complement Chapter 5 of the Commercial Law on July 3, 2007. The most significant change is that Chapter 5 categorizes the activities of maritime corporations into two parts-carriage and charter. The articles on voyage charter, time charter and bare-boat charter are under the broader section on charter, while affreightment in general ship and passenger marine carriage are dealt under the carriage section. Voyage charter is a contract of carriage in its legal nature, regardless of its name. Therefore, the maritime law revision has a problem in that it put voyage charter under the charter section, which could cause misunderstanding that voyage charter is a type of contract different from contract of carriage. The revised maritime law classifies the parties of a contract into shipowner and charterer, regardless of the type of the contract by charter party. As a result, the definition of shipowner varies in different articles, which leads to individual interpretation of the definition of shipowner in different articles. In regards to the definition of shipowner, I do not approve of the view that include bare-boat charterer, time charterer and sub charterer in the category of shipowner and co-owner. The term “charterer” also has to be interpreted in every article to clarify whether it means voyage charterer, time charterer and/or bare-boat charterer. A certain term must have a same meaning within a code of law as long as there is no specific cause. When a term could or should be interpreted differently in different articles within a code of law, the choice of the term is not an appropriate one. This thesis studies the different interpretations of the terms such as shipowner, charterer and carrier, points out the problem and suggests alternative solution. In the case of contract of carriage, the term “carrier” is more appropriate than the term “shipowner”, since “carrier” includes on contract by voyage charter party, the term “charterer” must be specified into voyage charterer, time charterer and bare-boat charterer. The term “charterer” must be used only when it includes all three types of the charterer to avoid confusion.

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