정기용선계약 체결 후 해난이나 전쟁으로 인한 불가항력적 사정변경의 발생시 계약해지권의 인정 가능성에 관한 연구

It is necessary to admit so called “clausula rebus sic stantibus”** **The Principle of Change of Circumstances: A theory that restrictively permits the revising or cancellation of a contract based on good faith principle if the consequences are severly unjust in substance albeit not necessarily so in form. in maritime law especially time charter contract due to the fact that maritime law involves a lot of risks and it is highly influenced by foreign relations. Therefore Great Britain, where maritime law has originated, acknowledges “clausula rebus sic stantibus” as a legal principle. However in South Korea, it is recognized as a residual conception to principle of good faith and it is left with judges’ discretion whether to choose “clausula rebus sic stantibus” or not. Judges usually have sat in judgment on “clausula rebus sic stantibus” cases according to principle of good faith. Nevertheless, it is required to prepare to contemplate the possibility to accept “clausula rebus sic stantibus” shown in British maritime law cases. In the light of comparative law, different legal theories about the principle are being developed in France, Germany and England. However, German theory****** Die Lehre der Geschäftsgrundlageis well designed for Korean legal circumstances highly influenced by Japan and German legal theories. In Germany, “clausula rebus sic stantibus” has been legislated and has entered as a new provisions in German Civil Law. In time charter contract, New York Produce Exchange Form and Baltime Form are usually used to conclude a contract. New York Produce Exchange Form and Baltime form have a stereotyped a get-out clause in the contract. Act of God, public enemies, fire, restraint of princes, rules and people are good examples. In addition, according to British maritime law, import prohibition, change in law, illegalization by war, ship collision and stranding and other unexpected incidents are major causes of revocation of a contract on the basis of “clausula rebus sic stantibus.” On the other hand, cost increase, seperation of contract, impossibility of performance in a short period of time, torts and default can not be used as reasons for “clausula rebus sic stantibus.” These British cases are good source of law even in South Korea court. In conclusion, “clausula rebus sic stantibus” has been exceptionally accepted in South Korea court, however, in a time charter contract specialized by its international characteristics and its high possibility of unexpected incident, “clausula rebus sic stantibus” needs to be admitted in a court more than ever. British maritime law cases and German legal theory for “clausula rebus sic stantibus” are good source of law and theoretical fundamentals for application of “clausula rebus sic stantibus.”