한진해운 회생절차에서의 해상법 및 도산법적 쟁점

Hanjin Shipping applied for rehabilitation proceeding to a Korean court and the proceeding was commenced on September 1, 2017. Thereafter, ship owners, members of Alliance, cargo interests, pilots, banks, bunker suppliers, crew and insurance companies suffered damages and loss. Creditors were not limited to persons in Korea but there were lots of creditors abroad. Whether they were allowed to execute their claims against the vessels of Hanjin Shipping in foreign countries was at issue. According to UNCITRAL Model law on cross-border insolvency, several countries such as US, UK and Japan admitted the effect of the rehabilitation proceeding in Korea. However, the vessels of Hanjin Shipping were arrested in otherwise countries such as China and Panama. The legal nature of a Bareboat chartered vessel(BBCHP vessel) was at issue. According to Article 58 of the Rehabilitation Act, the property of the debtor is no longer allowed to be executed by the creditor as soon as the rehabilitation proceeding starts. In case of M/V Hanjin Xiamen, the Changwon district court decided that the vessel was not the property of Hanjin Shipping because the vessel was still owned by the SPC in Panama. The decision results in impeding rehabilitation of the debtor. Now that a BBCHP vessel is actually owned by the charterer as a debtor, if it is allowed to be arrested, the debtor’s business would be hampered very much. Therefore, Article 58 of the Act should be revised to regard a BBCHP vessel as a property of the debtor. In a liner shipping business, the contractual carrier such as a NVOCC or a freight forwader enters into carriage of goods by sea contract with the shipper. In order to protect the cargo interest, compulsory liability insurance should be imposed on the contractual carrier with sufficient insurance amount. The cargo claims should be included as one of claims which trigger maritime lien in Article 777 of Korean Commercial Code. In the Hanjin Shipping case, the punctuality which is one of advantage in the liner shipping as opposed to the bulk business was not kept. The fund for securing discharging of cargo on board the debtors’ vessels at the commencement of rehabilitation proceeding should be set-up.