船舶期間保險에서의 船舶不耐航에 관한 考察

도중권(Doh Joong-Kwon) 한국관세학회 2005 관세학회지 Vol.6 No.2

A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure. The ship which is most important of shipping business shall be seaworthy, i.e., reasonably fit in all respects to encounter the ordinary perils of the adventure. Section 39 (5) of the Marine Insurance Act 1906 provides as follows: In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness. On a literal construction of the subsection, the insurer would be exempted from subsequent losses attributable to any kind of unseaworthiness, and not merely from those attributable to the particular defect, of which the insured had knowledge when he sent the vessel to sea It seems, however, that the proviso must be construed as if the word such were inserted before the word unseaworthiness. Thus the assured may recover for loss by perils of the seas, although the vessel was unseaworthy, if he was not privy to such unseaworthiness, but that if he were privy, he would be unable to recover. The insurer is not to be liable for a loss attributable to unseaworthiness to which the assured was privy. In the case of insurance under a time policy the intention was that the assured should be unable to recover in respect of a loss occasioned by his own fault That was the rule under the law as it existed before the Act. The meaning of the words privity of the assured means not only knowledge of the facts constituting the unseaworthiness but also knowledge that those facts rendered the ship unseaworthy, and means that the persons whose knowledge is relevant are the assured personally or their alter ego. Knowledge for this purpose does not merely mean positive knowledge that the ship is unseaworthy, or not reasonably fit to encounter the ordinary perils of the voyage, but includes also that sort of knowledge expressed in the phrase turning a blind eye. If a man, suspicious of the truth, turns a blind eye to it, and refrains from inquiry - so that he should not know it for certain - then he is to be regarded as knowing the truth. But privity does not necessarily carry any connotation of fault; it is not the same as negligence, nor is it the same as wilful misconduct, although in many cases- sending to sea in an unseaworthy state may also be either negligence or misconduct. The burden of proof on the issue of unseaworthiness is on the underwriter.

적하보험에서의 입증책임에 관한 연구

도중권(Joong-Kwon Doh) 한국관세학회 2006 관세학회지 Vol.7 No.2

A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the assured, in manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure. The ordinary rule that the assured will fail in his claim where the court is left in doubt as to whether the loss was due to an insured peril or to some cause not covered by the policy has been confirmed by the House of Lords in The Popi M. That decision highlights the importance of this well-established principle, and can already be seen to have influenced the course of litigation in other cases where underwriters have adopted the stance of putting the assured to proof of his claim, rather than seeking to put forward positive defences. In a risk management of an insurer there may be two things. One is an open liability prescribing all risks by the seas as a risk bearing and the other is an enumerated liability which means the insurer bears the risks enumerated on a clause of the law or on an insurance contract. In korea, the shipper generally prefers all risk such as I.C.C.(A) as we saw at the present condition in according to the insurance clauses. As all risk is the open liability there is a problem to prove the liability to the insurer. So the problem can be solved both by raising well fitted premium and by transferring the problem to prove the liability from an insured to the insurer. For this, it has to be considered the device to transfer the problem to prove the liability to the insurer by revising both I.C.C.(A) clause and I.C.C.(B), I.C.C.(C) clause.

기평가보험에서의 보상액대위주의의 문제

도중권 ( Joong Kwon Doh ) 한국해운물류학회(구 한국해운학회) 1997 해운물류연구 Vol.24 No.-

2009년 협회적하약관(A)에서의 불내항-부적합에 대한 보험자의 면책범위

도중권(Joong-Kwon Doh) 한국관세학회 2010 관세학회지 Vol.11 No.4

This paper analyses exclusion scope of insurer for Unseaworthiness and unfitness in ICC 2009(A). I argued that the most reasonable and fair exclusion scope of ship's unseaworthiness and unfitness is the application of the implied warranty of seaworthiness in Cargo Insurance shall be excluded. Thus, a provision clause of the clause 5.2 of ICC 1982(A) eliminated the clause 5.3 of ICC 2009(A) Eventually cargo insurance shall not cover loss damage or expense arising from unseaworthiness of vessel or craft or unfitness of vessel craft for the safe carriage of the subject-matter insured, where the Assured are privy to such unseaworthiness or unfitness, at the time the subject-matter insured is loaded therein. and shall not cover loss damage or expense arising from unfitness of container or conveyance for the safe carriage of the subject-matter insured, where loading therein or thereon is carried out prior to attachment of this insurance or the Assured or their employees and they are privy to such unfitness, at the time of loading

海上保險에서의 離路에 관한 硏究

도중권(Joong-Kwon Doh) 한국무역학회 2003 貿易學會誌 Vol.28 No.4

ICC(A)(2009)와 ICC(A)(1982)상의 면책위험 비교분석

도중권(Joong-Kwon Doh) 한국관세학회 2014 관세학회지 Vol.15 No.4

The purpose of this study comparatively analyses on exclusions in 1982 and 2009 Institute Cargo Clauses. We can divide the revision in three ways; ⓐ clauses of 4.1, 4.2, 4.4, 6, 7.1, 7.2 have not changes. ⓑ clauses of 4.5, 4.7, 5.3, 7.4 have changed words and phrases partially. ⓒ clauses of 4.3, 4.6, 5.1, 5.2, 7.3 have changed completely. I argued that the most reasonable and fair exclusion scope of ship’s unseaworthiness and unfitness is the application of the implied warranty of seaworthiness in Cargo Insurance shall be excluded. Thus, a provision clause of the clause 5.2 of ICC 1982(A) eliminated the clause 5.3 of ICC 2009(A) Eventually cargo insurance shall not cover loss damage or expense arising from unseaworthiness of vessel or craft or unfitness of vessel craft for the safe carriage of the subject-matter insured, where the Assured are privy to such unseaworthiness or unfitness, at the time the subject-matter insured is loaded therein. and shall not cover loss damage or expense arising from unfitness of container or conveyance for the safe carriage of the subject-matter insured, where loading therein or thereon is carried out prior to attachment of this insurance or the Assured or their employees and they are privy to such unfitness, at the time of loading A new definition of “terrorism” is introduced and the revised clause also widens the acts of an individual to encompass ideological and religious motives.

국제물품매매계약에 관한 유엔협약상의 매도인의 하자보완권

도중권(Joong-Kwon Doh) 한국관세학회 2010 관세학회지 Vol.11 No.2

This study focused on the seller's right to cure in the CISG(United Nations Convention on Contracts for the International Sale of Goods) The seller's right to cure relates to all his obligations. The seller may remedy any failure to perform his obligations. This language is broad enough to include a defect in documents. The seller must bear the costs involved in remedying a failure to perform. Insofar as the seller has the right to cure, the buyer is in that case obliged to accept the cure. If he refuses to do so, he can neither avoid the contract nor declare a reduction in price. Should the buyer requires delivery of substitute goods and the seller offers repair, it depends on the expense each case. The relationship between the seller's right to cure and the buyer's right to avoid the contract is unclear.

중국의 해외직접구매 동향 분석과 우리나라의 정책 방향

김형철(Hyoung-Cheol Kim),도중권(Joong-Kwon Doh) 한국무역연구원 2016 무역연구 Vol.12 No.4

Recently along with the development of information and telecommunication technology, transaction environment has seen tremendous improvement. This also has diversified consumers’ buying patterns. In the position of consumers, overseas direct purchase increases efficiency; however, domestic economy gets hindered by that inevitably. In fact, in countries including China, economy indicates many side effects by that. Besides, in the situation that economic recession disturbs domestic sales, Korea and China need to make efforts to change overseas direct purchase to domestic purchase. In other words, it is necessary to convert overseas direct purchase to local purchase. The purpose of this study is to conduct causality analysis regarding overseas direct purchase in Korea and China and analyze policies for overseas direct purchase in Korea and China. This author is going to find out ways to change overseas direct purchase to domestic consumption. This is because consumption attributed to overseas direct purchase works as a hindrance factor for economy growth in Korea. Therefore, this study provides implications about it in order to discover proper directions for Korean policies.

4차 산업혁명에 대응한 효율적 수출지원정책에 관한 연구

유광현(Kwang Hyun YU),도중권(Joong Kwon Doh) 국제e-비즈니스학회 2017 e-비즈니스 연구 Vol.18 No.2

協會積荷約款 第5條 2項에서의 耐航默示擔保 適用의 問題

都重權 관동대학교 1996 關大論文集 Vol.24 No.2

A general application of the implied warranty of seaworthiness is harsh and severe to the assured, and would with great difficultly. Thus it is necessary to mitigate and modify its general application in practice and statutory regulation. The insurers may dispense with the warranty of seaworthiness and waive it breach. And perils clause is incorporated to time or voyage policies. And the above mentioned implied warranty of seaworthiness seem to be highly unfair and unreasonable. Therefore I propose that it is most reasonable and fair exclusion scope of ship's unseaworthiness for both sides of a contract. Namely, it is necessary that a application of the implied warranty of seaworthiness shall be excluded. Thus, there shall be no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer shall be not liable for any loss attributable to such unseaworthiness. And also, in a voyage policy on goods there shall be no implied warrant that at the commencement of the voyage the ship is not only seaworthy as a ship, but also that she is reasonably fit to carry the goods to the destination contemplated by the policy. Consequently, a provisory clause of the clause 5.2 of Institute Cargo Clauses shall be eliminated.