정기용선계약상 반선의 의미와 준거법 - 대법원 2019. 12. 27. 선고 2019다218462 판결 -

A time charter shall come into effect when a shipowner agrees to provide a charterer with a ship serviced by the crew on board and equipped with navigation facilities for a given period to be used for navigation, and the charterer agrees to pay the fare determined by the period in response thereto. Accordingly, no matter how the legal nature is interpreted, there is no difficulty in recognizing the reciprocal relationship between the charterer's main debt, the charterer's obligation to pay charter hires, and the shipowner's obligation to keep the ship in a suitable state for use and profit during the charterer period. In addition, when an insolvency proceedings are initiated for the charterer during the charter period, the manager may choose to terminate or perform the charter party pursuant to Article 119(1) of the Debtor Rehabilitation and Bankruptcy Act(hereafter, DRBA). Meanwhile, legal set-off in English law is often described as being a procedural, not a substantive defense. However, the effect of the judgment is that the parties' claims are extinguished to the extent of the lesser claim. Legal set-off therefore operates as a substantive extinction or reduction of the debt owed by the defendant. It is therefore more accurate to say that legal set-off is a substantive defense but that it reaches that result by procedural means. If the governing law of the contract is English law, in principle, the nature of juristic acts under private international law should be determined according to the private international law of the forum. Therefore, in accordance with the principle of lex fori concursus, matters concerning the restriction or prohibition of set-off, which can be said to have legal effect unique to the Insolvency Act, should be regulated in accordance with the DRBA. However, the requisite and effect of set-off, which are other matters, shall be governed by the English common law, which is the governing body of set-off. In the case of the time charter, the charterer is obliged to return the ship to the owner when the charter period is over, since the service provided by the ship and the crew is to be provided for a certain period of time. Of course, according to the principle of party autonomy, the parties to a time charter may arbitrarily define the legal relationship between the parties in the case of early re-delivery of the vessel due to the premature termination of the contract, etc. However, if it is not clear whether the charterer has a repayment claim for residual fuel oil at the time of the early re-delivery of the vessel, unless there is an express provision such as Article 15 of ‘The Shelltime 4 Form’, it is difficult to recognize the receivables of the charterers for the residual fuel oil against the ship owners due to the early re-delivery of the ship.