상법상 총체적 책임제한의 배제사유와 증명책임의 합리적 해석에 관한 연구

The global limitation system is the one unique to the maritime law, where the shipowner limit a certain scope of liabilities generally in respect of the operation of ship, and it performs the function to the protect a shipowner effectively. The system, since the 1924 LLMC came into existence, has been adopted by the major shipping countries, and especially in the case of Korea, 1976 LLMC was included into the revised Korean Commercial Act dated 1991, with the result that modernity of the system was enhanced. However, it might be not appropriate as of today, as the overall limitation of liabilities through the system does not comply with the general principle of modern private law, considering that the risks the marine enterprises face with at the sea is reduced in comparison with the past due to the great development of technology of ship-building and communication. Furthermore, the criticism that the marine enterprises are excessively protected cannot be avoided, if the system is attempted to be maintained without any change. Nevertheless, it should be noted that the liabilities the marine enterprises bear in respect of marine casualty are out of knowledge due to the continuous up-size of the vessels, and considering the ideology of the Commercial Act, that is, the maintenance and protection of business entity, there is still reason why the it be maintained. In furtherance of this idea, this research paper will proceed to the discussion focusing on the conduct barring limitation which functions as the institutional framework to secure the stability of the system. But the system would be no longer enforced if the conduct barring limitation is widely interpreted, while it would be de facto impossible to prohibit marine enterprise from resorting on the system if the conduct barring limitation is narrowly interpreted. Therefore, the appropriate study on the interpretation regarding the conduct barring limitation should be made for the alignment of interests between the marine enterprise and its creditors. In this regards, this research paper will review the school of thought and cases in respect of the proviso at the article 769 of Korean Commercial Act which codifies the conduct barring limitation, and if necessary, will analyze the interpretation of article 4 of 1976 LLMC which is followed by the proviso at the article 769 of Korean Commercial Act. In addition, as there is no explicit article with regard to the onus of burden of proof in the conduct barring limitation, this research paper will review whether the burden of proof rests with the marine enterprise insisting the limitation or rests with the creditors insisting the deprivation of marine enterprise’s limitation right.