선하증권소지인의 손해배상채권과 신용장대금채권(또는 환매채권)의 관계에 관한 연구

In this study, It is examined to the Relation between a Claim for damages of the holder of the Bill of Lading and Claim for the price of Letter of Credit as main subject. In detail looking into, as follows. Firstly, Whether it is real rights guaranteed by security or ownership transfer through entrust as a security right by way of trasfer that negotiating bank and opening bank take right. Secondly, How it is theorized to aquire Bill of Lading when opening bank of Letter of Credit is stated as consignee. Thirdly, Whether the Relation between a Claim for damages of the holder of the Bill of Lading and Claim for the price of Letter of Credit is The untruthful joint debt. As result of previous looking into, it reaches to the conclusion that majority theory and judicial precedent is valid. the reason is as follows. Firstly, When Bill of Lading is endorsed and transferred to the negotiating bank, the right that it acquires about the carring goods is security by means of transfer and its regal characteristic is ownership transfer through entrust. To theory so, it reflect balance of interest of negotiating bank and opening bank as creditor between import and export as debtor. and it is a objective and neutral theory that is harmonized with real right's validity of bill of lading. Secondly, Negotiating bank acquires ownership over cargo and right of consignee in contract of carriage. As a result, It acquires claim for delivery of cargo or claim for damage from default and tort. Thirdly, majority opinion is that relation between a claim for damages of the holder of the Bill of Lading and claim for the price of Letter of Credit is not the untruthful joint debt. This opinion is valid because of following reason. If negothiating bank and opening bank demand excess amount of damages as opposite opinion insist, in this case, negothiating bank and opening bank abuse his rights. And that exercise of rights is not in accordance with the principle of trust and good faith. To theorise like this as stated above, there have been only to do as it can be compensated for the damage really suffered.