해상 거래에서 상관습법에 대한 연구

The customary commercial law can be a source of law to be applied to commercial transactions. Therefore, it is very important. If a commercial practice is accumulated and admitted by lots of people as a law in the relevant society, it can be a customary commercial law. According to the writer’s research, (i) the Korean Supreme Court admitted that the practice of the inn keeper to exchange the cargo with the delivery order(D/O) may reach to a customary commercial law; (ii) The Korean Supreme Court decided that the practice in Korea for the carrier to deliver the cargo without exchange of it with the Bill of Lading was no effect to the holder of the B/L; (iii) The carrier’s duty to provide a container box to the shipper, the bare boat charterer’s duty to repair and maintain the borrowed vessel and the use of YAR in assessing General Average became a kind of customary commercial law; and (iv) The charter’s duty to designate safe port, and who is the owner of the vessel under construction between the ship builder and the shipowner has not reached to the customary commercial law and still remain in the mere practice. The customary commercial law is not desirable because people can not know about it until the court admits it as a law. Therefore, we need to insert customary commercial law in the Commercial Code as a default rule. Delivery Order(D/O), the carrier’s duty to provide a container box to the shipper in the liner service and the use of YAR in addressing general average are good examples. If the inserting them into the law is not easy, making them as one of general terms may be a compromise.