소유권취득조건부 선체용선계약의 법적 성질과 관련된 몇 가지 문제에 관한 고찰

Being based on a principle of freedom of contract, the scope and contents of a Bareboat Charter(hereunder, BBC) may extend over a wide range, therefore may contain various forms of contracts from mere rental of a vessel to a method of ship finance. However, a Bareboat Charter with Hire Purchase option(hereunder, BBCHP) which has been commonly used in the form of the BIMCO BARECON should be recognized as a Finance Lease of a vessel, not mere rental of a vessel. Especially, as the essential characteristics of a BBC is the transfer of possession and whole control of the vessel from the Owner to the Charterer, the Charterer can be regarded as the de facto owner of a chartered vessel. In this context, the ownership of a chartered vessel which remains to the Owner of the vessel functions as security in the ship finance contract. On the other hand, since a BBCHP is a finance lease to which a Hire Purchase Agreement is attached, the Charterer who has a exclusive and substantial control of the chartered vessel has to pay the acquisition tax. In addition, as to the concept of ‘importation of the vessel under the BBCHP’ under Korean Customs Act, as the Charterer in fact has substantial ownership of the vessel, it is the Charterer who has the duty of declaration in accordance with Korean Customs Act. Finally when the debtor rehabilitation procedure was commenced, because the Owner of the chartered vessel has a formal ownership to secure his contractual right, it is highly insisted that the Owner’s status in the debtor rehabilitation procedure should be considered as a security right holder.