우리 상법(해상편)의 적용범위: 통일실질법인 헤이그-비스비규칙의 상법 편입에 따른 문제점을 중심으로

Maritime law, as a legal system specific to maritime enterprises, is characterized by its “international nature”. Therefore, maritime law can be considered a “treasure house of private international law issues”. Another distinctive feature of maritime law is the existence of numerous treaties that unify substantive law or substantive private law, demonstrating the universal and unifying nature of maritime law. Representative examples include the 1924 “International Convention for the Unification of Certain Rules of Law relating to Bills of Lading” (“Hague Rules”), a convention governing the international carriage of goods by sea, and the 1968 “Protocol to Amend the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading” (“Visby Rules”, the Hague Rules as amended by the Visby Rules are referred to as the “Hague-Visby Rules”). The Hague-Visby Rules are a uniform substantive private law that applies uniformly, regardless of the governing law, to the matters they govern. Therefore, to apply the correct source of law to a legal issue, the scope of application of the relevant treaty or convention must first be precisely defined. Article 10 of the Hague-Visby Rules, which sets out the scope of application of the Convention, is a unilateral conflict of laws rule that takes precedence over general private international law applicable to contracts of carriage and bills of lading. Instead of acceding to the Hague-Visby Rules, Korea incorporated their core provisions into its Commercial Act, undermining the function of the Hague-Visby Rules as a uniform substantive law. Furthermore, Korea excluded Article 10 from its incorporation of the Hague-Visby Rules, and as a result, the provisions incorporated into its Commercial Act apply only when the governing law of a contract of carriage or bill of lading is Korean law. Therefore, Korean courts must determine the governing law for various issues related to a contract of carriage and bill of lading. Considering the fact that most Korean lawyers are not familiar with private international law in the narrow sense, it is difficult to understand why Korea chose the difficult path of judging the governing law instead of acceding to the Hague-Visby Rules. The specific order of discussion in this article is as follows. First, the author reviews the key provisions of the Hague-Visby Rules and their incorporation into the Korean Commercial Act (maritime section) (Chapter Ⅱ). The author then examines the content and legal nature of Article 10, which defines the scope of application of the Hague-Visby Rules, a unified substantive law, and examines how the United Kingdom, Germany, and Japan have adopted Article 10 (note that in Germany, it is Article 10 of the Hague Rules) (Chapter Ⅲ). Next, the author examines the problems resulting from Korea’s incorporation of the Hague-Visby Rules into the Korean Commercial Act: the need to designate a governing law for various issues (Chapter Ⅳ). Finally, the author examines the direction Korea should take in the future and summarizes the lessons we can draw form the above discussion (Chapter Ⅴ). The lessons we can draw from this discussion are as follows. First, if Korea wishes to apply in the future a convention (e.g., the Rotterdam Rules) that is a unified substantive law, it would be best to become a party to the convention rather than incorporating it into domestic law. Second, if Korea decides to incorporate a convention into domestic law for any reason, it would be best to incorporate the provisions defining the convention's scope of application as well. Third, if the first and second lessons are not followed, it must be recognized that the provisions of the convention incorporated into domestic law apply only when Korean law is the applicable law, and are not internationally mandatory rules that apply regardless of the applicable law.