해사국제사법상 편의치적에 관한 고찰

다국어 초록 (Multilingual Abstract)

Private international law or Conflict of laws can be defined as inconsistency or difference between the laws of different countries, arising in the case of persons who have acquired rights, incurred obligations, injuries or damages, or made contracts, within the territory of two or more jurisdictions. Specially the law of the ship`s nationality or the law of the flag is commonly used to apply the articles concerned in maritime field of private international law. Despite the vessel`s flag or nationality plays an important part in the choice of law problems, the theory of the law of the flag suffers from serious difficulties. For example, what law applies in cases of vessels wearing flags of convenience, or in cases of double flagging, or to collisions on the high seas between vessels of different flags? Specially I concentrated my attention on the flags of convenience, which is not the vessel`s bona fide nationality. In this case, the question of whether there exists a genuine link between a state and its flag vessels may be addressed indirectly. And the article 8 of Korean Private International Law stipulates the Exception of Choice of Law Clause, where the law of the country with which it is most closely connected is obviously existed, the legal relationship concerned is governed by the law of the country. Thus, it is essential for me to study on the constructive method of the relationship between a state and its flag vessels because the article 8 of Korean Private International Law can be applied to the flags of convenience. Therefore the writer try to describe both the flags of convenience and a genuine link between a state and its flag vessels in maritime private international law. These articles are followed by analyses concerning the lifting of the corporate veil and the piercing of the corporate veil for the purpose of grasping of the substantial incorporated entity. After considering all the factors, the use of flags of convenience can be applied to the Exception of Choice of Law Clause of Korean Private International Law. In this case, the law of the flag should be only one indicator or contact among many. It should rarely, if ever, be the sole consideration in determining the proper law of the maritime field. Thus, it is essential to think over many contacts which can be used in determining the applicable law through most significant relationship theory.