국제무역증진을 위한 유통증권(화물상환증 등) 법리의 명확성 제고

Abstract

This study is on the need of true and accurate writing of the Securities as a motive to compliance. In reality, it's still a big problem in the securities if the substance is different from the document. In the case of the carrier's loss of occupation when a third party obtains it can bring serious troubles with respect to the validity of the bonds. In reality, bills of lading, freight exchange slips and warehouse securities are documents having evidential function as well as negotiable instruments. These securities are subject to the contract of carriage (custody) and inevitablly has a essential character of carriage(custody) which can not ignore the causal relations (real relationship). This should be considered in interpreting the securities' credital force. Article 131 of the Commercial Code was revised in 2010. Obviously, the revised law stresses on the wording of the document itself more than substantial fact. However, the problem mentioned above has not been solved eventually. In particular, the essential relation between the carrier and consignor, holder of securities(real relationship) need to clear up the claiming credit of the bill of lading(securities of custody). In essence, the bill of lading is different from the promissary note and check, in that the former is influenced by the real relationship as the latter is not. Bill of lading is subject to the real performance, but the need of protection of its holer is another. About the credital force of the bill of lading, there are several traditional theories performed. But in my opinion, the carrier's fiduciary duty should be stressed in this issue additionally. The accurate writing of the transport documents(bills of lading) regarding the factual relationship (type, quality and quantity of cargo, packaging, shipping status, etc.) is absolutely of importance because it is the premise of claims(including claiming issuing bank). I propose that the carrier's attachment of the additional material of cargo shipments and samples of photos about the state of shipping. While this is not regulated in the Commercial Act, the attachment of these materials will reduce the trouble between the parties. Though the Commercial Code concerning the bill of lading has been revised, we should try to enhance the credibility of the bill of lading in the international market especially. For example, we should stress on the carrier's duty of care in the writing the documents. According to my opinion, in the case of the discrepancy between the wording and the real transaction, the concrete conclusion may differs from the traditional theories. I hope my proposal above can improve the Korea's international transactional surrounding and make the predictability of trade higher in the future.