融通契約의 法的 性質과 어음 抗辯

梁碩完 한국경영법률학회 1992 經營法律 Vol.5 No.-

송하인의 운송에 적합한 운송물 인도의무 - 로테르담 규칙을 바탕으로 -

양석완 한국상사법학회 2013 商事法硏究 Vol.32 No.1

The shipper and the carrier may always specify what ready for carriagemeans. If the parties do not specify how the goods are to be delivered,there is a presumption that the goods shall withstand the intended carriage,including their loading, handling, stowing, lashing and securing, andunloading without being damaged and without causing damage to the shipor other cargo or injury to the crew. Neither the Hague/Hague-Visby Rulesnor Hamburg Rules explicitly deal with this obligation. On the other hand, it is general that the risk transfer from shipper(seller)to consignee(buyer) on shipment in both FOB and CIF contract under theCISG. In relationship with the Rotterdam Rules, finally the cargoclamant(buyer) may allege that the risk still remains with the shipper wherehe could find the shipper’s breach of obligation to delver the goods readyfor carriage. For instance, the shipper would be liable for inevitabledeterioration arising from insufficiently packing of the goods and failing tostowing the goods properly considering their nature and the intendedvoyage. Based on the text of article 27.1 under the Rotterdam Rules, theconclusion does seem to be that the shipper's duty to deliver the modifiedin the contract of carriage. This interpretation is supported by the fact that subparagraph 3, which concerns the stowage of goods inside a container ortrailer. and thus also concerns the safety aspect, does not contain an ‘unlessotherwise agreed’ qualification. This would mean that agreements betweenthe shipper and the carrier are only valid if they concern aspects of thereadiness for carriage, other than the safe transportability of the goods. Also, the chapeau of the article was changed to make it read ‘basis ofshipper's liabilities to the carrier’, to make it clear this article only dealswith the (contractual) liabilities between shipper and carrier, not withpotential liabilities of the shipper vis-à-vis third parties, this being outsidethe scope of the Rotterdam Rules. it is not intended to create a right ofaction for third parties against the shipper. In order to hold the shipper liable, the carrier has to prove that hesuffered loss or damage, that the shipper breached one or more of hisobligation under the Rotterdam Rules, and that there is a link of causationbetween these two elements. If the carrier succeeds in proving loss ordamage, breach of obligation and causation, the burden then shifts to theshipper to prove that cause or one of the causes of the loss is notattributable to its fault or to the fault of any person for whom the shipperis liable under article 34.

불감항 과실에 관한 비교법적 연구 -로테르담 규칙과 헤이그 비스비 규칙과의 비교를 중심으로-

양석완 국제거래법학회 2013 國際去來法硏究 Vol.22 No.2

The carrier will be expected exercise only resonable skill and care to ensure that the vessel is seaworthy. In some cases the vessel starts its voyage in an unseaworthy condition, either because the crew were not aware of the cause of the unseaworthiness or because it is the practice of a particular trade to sail in such a condition, which would be remedied at a later stage, with the knowledge of the carrier. In these cases, would the carrier be in breach of his obligation to provide a seaworthy vessel? Article 14 of the Rotterdam Rules corresponds to a certain extent to Article 3(1) of the Hague and Hague-Visby Rules and establishes the duty of the carrier to exercise due diligence to provide a seaworthy vessel, that is to say a vessel which is in a condition to encounter whatever perils of the sea a ship of that kind, and laden in that way, may be fairly expected to encounter in the course of the contractual voyage. It embraces the three distinct aspects of seaworthiness recognized in maritime law, namely the physical condition of the ship, the efficiency of the crew and equipment, and the cargoworthiness of the vessel. In brief, this article amounts to imposing on the continuous duty of due diligence throughout the course of a voyage. Under the Hague and Hague-Visby Rules the obligation of due diligence ‘expires’ upon sailing from the load port. The addition of the words ‘and during the voyage by sea’ in article 14 of the Rotterdam Rules is an improvement of the position for cargo interests. The continuous duty is one of due diligence as opposed to an absolute duty. This raises the issue as to whether or not a defect which manifests itself after the commencement of a voyage but which is not capable of being repaired during the course of a voyage would lead to any less favourable finding for carriers than would have been the case under the Hague and Hague-Visby Rules. Based on the text of article 27.1 under the Rotterdam Rules, the conclusion does seem to be that the shipper’s duty to deliver the modified in the contract of carriage. This interpretation is supported by the fact that subparagraph 3, which concerns the stowage of goods inside a container or trailer. and thus also concerns the safety aspect, does not contain an ‘unless otherwise agreed’ qualification. This would mean that agreements between the shipper and the carrier are only valid if they concern aspects of the readiness for carriage, other than the safe transportability of the goods. The Rotterdam Rules introduces the concept ‘performing party’ for the purpose of extending the possibilities of recovery for the shipper and consignee from their contractual party(carrier) to all other parties that have undertaken to perform all or part of the carrier’s obligation during the maritime phase of the shipment (maritime performing party); it makes clear, of course, that the carrier shall be (and remain) responsible for the acts and omissions of such persons.

人的抗辯의 個別性과 그 限界

梁碩完 濟州大學校 地域社會發展硏究所 1996 社會發展硏究 Vol.12 No.-

告知義務에 관한 考察

梁碩完 제주대학교 1985 논문집 Vol.21 No.1

The insurance contract is an aleatory one that places the responsibility upon the insurer on the premise of a casual accident. The insurer, therefore, must be able to get complete and true information in order to evaluate the risk correctly in contracting and accepting insurance. In other words, it is necessary that the insurer should have a good grasp of the situation of individual risks in terms of insurance skill. For this goal the insurer can investigate the individual risks voluntarily, but the insurer's unilateral investigation is not enough in contracting the insurance that is intended for a great number of the insured According the insurer must rely upon the disclosure and representation of the insured that know the risks best. The disclosure and representation system has been developed in order to offer the insurer the same information about the risks that are originally under the control of the insured, by which it also enables the insurer to evaluate the nature of the risk correctly and to prevent moral risks by excluding bad ones. In this respect disclosure and representation of the insured is the most significant in contracting insurance. Article 651 of the Korean commercial Law provides that the insurer ran cancel the insurance on condition that the insured do not disclose material facts, or disclose insufficiently on purpose or through a gross mistake at the time of insurance contract within a month after knowing the fact or within five years after contract This is the only regulation concerning disclosure and representation in our law. Today in the light of the insurance situation and the peculiarity of the insurance system, a new interpretation and law seem to be required concerning the method of disclosure and representation and law seem to be required concerning the method of disclosure and representation or the effect of violation in disclosure and representation through a fraud Accordingly, this study has dealt with the basic problems of disclosure and representation and provided the direction for law interpretation or law revision.

숨은 어음保證에 관한 考察

梁碩完 제주대학교 1992 논문집 Vol.35 No.1

The act that a guarantor specify his intention to guarantee a bill or note on it and sign it is called the overt aval. The overt aval makes public the discredit of a bill or note and makes its circulation hindered, which is the reason that an individual's guarantee is in actuality seldom, made use of. Formally, drawing, endorsing or acceptance is used as the method of securing the liability of a bill or note. This method is referred to as the hidden aval. In recent bill transactions, in particular, endorsements act as the hidden aval for those who try to gain the credit of a bill or note. In the period of commercial credit, endorsements served the important purpose of facilitating the circulation of a bill or note and of strensthening the credit of it by accumulating the security. With the institution of bank credit, however, endorsements have changed greatly in their functions. Since only the deeds of drawing, endorsing and acceptance exist legally, their effects arise depending on formal expressions. In other words, the drawer, endorser and the acceptor of a bill or note each takes the responsibility as a doer relating to a bill of exchange, and the hidden aval can only be the ground for personal protests. The reason for it is that the purpose of the hidden aval is only an economic one in invoking legal forms i.e. a motive in terms of legal deeds. Accordingly, it is needless to say that the origination and change of the liability arising from the effect of the signature must be determined depending on the form of deeds, irrespective of the purpose of the hidden aval among the persons concerned. Since the economic purpose of the person concerned, that is, a motive of legal deeds is not entirely insignificant in terms of law, as the purpose of the hidden aval, it must be considered as a matter of personal protests among the persons concerned in the holder's exercising his rights.

집단적 분쟁해결을 위한 독일 단체소송제도 연구

梁碩完 濟州大學校 法과 政策硏究所 1997 法과 政策 Vol.- No.3

英國어음法(Bills of Exchange Act)上 融通어음에 관한 法律關係

梁碩完 제주대학교 1987 논문집 Vol.24 No.1

In the bill institution, the accrommodation bill that is a straightforward expression of credit has long been institutionalized in the Anglo-American legal system. while the Continental legal system, including the Law of Bills of our country has no codified regulatlons concerning it. The use of the accommodation bill, however. has long tern widely prevalent in the countries of the Continental legal system that has no substantive enactment as well as in the Anglo-American legal system. In our country, the accommodation bill has played an important role in our country's economy, yet the settlement of thr legal relations in regard to the accommodation bill is committed only to theories and judicial precedents, because there is no regulation concerning it. In the law of England and America, the regulations regarding the control of accommodation bills are Bills of Exchange Act(BEA) of England and Uniform Negotiable Instruments Law(UN I.L) of America and the provision concerning commercial paper, the third article of Uniform Commercial Code(U.CC.). With the establishment of convention portant lot uniforme sur les lettres do change et billets a' ordre in 1934. access of the Continental legal system was had to the Anglo-American legal system and our country's Law of Bills has been close to that of England and America, but there is still a wide difference between them. In England the law of bills of exchange has long been developed as a customary law and in 1882 Bills of Exchange Act was enacted by means of collecting and arranging the former customary laws, special laws and the judicial precedents This B.E.A has stipulated regulations concerning the legal concept of the accommodation bill in partirular. and became the basis of the legislation of UNIL in America. The aim of this paper is to examine the system of interpretation for facilitating the solution of the legal relations of our country's accommodation bills by studying the legal structure of function of the accommodation bill with the theories and precedents as its materials, and with the Engllsh Bills of Exchange Act as its central subject matter

新소송유형으로서의 「집단이익소송」의 법리

양석완 濟州大學敎 行政大學院 1998 濟行論叢 Vol.6 No.-

집단이익소송으로서의 『환경·소비자 소송』의 법리

양석완 제주대학교 환경연구소 2000 환경연구논문집 : 제주대 Vol.8 No.-