• 제목/요약/키워드: Bill of lading

검색결과 103건 처리시간 0.02초

신용장거래에 있어서 개설의뢰인의 서류심사 및 통지의무 (The Applicant's Liability of Examination of Document and Notification of the Discrepancies in Credit Transaction)

  • 박규영
    • 통상정보연구
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    • 제8권4호
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    • pp.105-121
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    • 2006
  • This study is related with the judgements of our country's supremcourt against the transaction of Letter of Credit which is beneficiary's fraudulent trade deal. In this case I think to analyse the judgements and to present the basic grounds on which the judgements were established. In Letter of Credit transaction, there are the major parties, such as, beneficiary, issuing bank, or confirming bank and the other parties such as applicant, negotiating bank, advising bank and paying bank. Therefore, in this cases, the beneficiary, the French Weapons' Supplier who did not shipped the commodities, created the false Bill of Lading, let his dealing bank make payment against the documents presented by him and received the proceeds from the negotiating bank or collecting bank, thereafter was bankrupted and escaped. For the first time, even though the issuing bank conceived that the presented documents were inconsistent with the terms of L/C. it did not received the payment approval from the applicant against all the discrepancies, made the negotiating bank pay the proceeds to exporter and thereafter, delivered the documents to the applicant long after the time of the issuing bank's examination of documents. The applicant who received the documents from the issuing bank, instantly did not examine the documents and inform to the issuing bank whether he accepted the documents or not. Long time after, applicant tried to clear the goods through custom when he knew the bill of ladings were false and founded out the documents had the other discrepancies which he did not approved. As the results, the applicant, Korea Army Transportation Command claimed, that the issuing bank must refund his paid amount because issuing bank examined the documents unreasonably according to u.c.p 500 Act 13th, 14th. In spite of the applicant's claim, the issuing bank argued that it paid the proceeds of L/C reasonably after receiving the applicant's approval of an discrepancy of document, the delayed shipment, but for concerning the other discrepancies, the trivial ones, the applicant did not examined the document and noticed the discrepancies in reasonable time. Therefore the applicant sued the issuing bank for refunding it's paid proceeds of L/C. Originally, this cases were risen between Korea Exchange Bank and Korea Army Transportation Command. As result of analysing the case, the contents of the case case have had same procedure actually, but the lower courts, the district and high courts all judged the issuing bank was reasonable and did not make an error. As analysing these supreme court's judgements, the problem is that whether there are the applicant's liability of examining the documents and informing its discrepancies to the issuing bank or not, and if the applicant broke such a liabilities, it lost the right of claiming the repayment from issuing bank. Finally to say, such applicant's liabilities only must be existed in case the documents arrived to the issuing bank was delivered to the applicant within the time of the documents examination according to u.c.p 500 Act 14, d. i. But if any the documents were delivered to applicant after time of the documents examination, the applicant had not such liabilities because eventhough after those time the applicant would have informed to the issuing bank the discrepancies of documents, the issuing bank couldn't receive repayment of its paid proceeds of document from the negotiating bank. In the result after time of issuing bank's examination of documents, it is considered that there's no actual benefit to ask the applicant practice it's liability. Therefore finally to say. I concluded that the Suprem Court's judgement was much more reasonable. In the following, the judgements of the supreme court would be analysed more concretely, the basic reasons of the results be explained and the way of protecting such L/C transaction would be presented.

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한국형 전자선하증권 활성화 전략에 관한 연구 (A Study on e-B/L Korea Service and its Facilitation Strategies)

  • 정윤세
    • 통상정보연구
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    • 제13권4호
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    • pp.51-79
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    • 2011
  • 우리나라는 2003년부터 2008년까지 전자정부 과제로 인터넷기반의 국가전자무역망(uTradeHub)을 성공적으로 구축하여 무역의 전자화를 활성화하고 있으며, 전자무역의 마지막 단계라고 불리는 선하증권(B/L)을 전자화한 '한국형 전자선하증권 서비스(e-B/L Korea)'를 정부와 민간의 협력 하에 구축하여 시범사업을 거쳐 2009년에 공식적으로 전자선하증권 서비스에 들어갔다. 국가적 차원에서 상법을 개정하고 시행령을 만들어 선하증권을 제도화한 것은 세계 최초이며 세계 각국이 이의 성공여부에 지대한 관심을 가지고 주목하고 있다. 한국형 선하증권의 성공은 2011년 말을 기점으로 우리나라가 세계에서 9번째로 무역 1조불 클럽에 가입한 '무역강국'의 위상을 높이고 실질적으로 우리 수출입기업의 무역거래비용을 절감함으로써 향후 무역 2조불시대를 앞당길 전자무역 활성화의 시금석으로 인식되고 있다. 하지만 아직은 국가 간 연계구축망이 부재하고, 서류의 보안성과 안전성올 높이기 위한 전자인중이 국제적으로 통용되고 있는 사적인증을 배제하고 국내공인인증만을 취급하는 등 e-B/L 서비스를 활성화하기 위해서 해결해야할 문제점도 산적해 있어 실질적으로 e-Nego 서비스가 크게 확산되지 못하는 실정이다. 따라서 본 연구는 e-Nego 또는 서면전환 과정에서 발생할 수 있는 한국형 전자선하증권의 변형에 따른 문제점을 비롯하여 구조적, 제도적 문제점과 사용상 장애요인을 도출하여 이에 대한 해결방안을 제시하였으며, 한국형 전자선하증권의 특성을 검토하고 통 서비스 활용을 활성화하기 위한 전략을 제시하였다.

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항공화물운송상(航空貨物運送狀)의 성질(性質)과 유통성(流通性) (The Character and Negotiability of Air Waybill)

  • 이강빈
    • 항공우주정책ㆍ법학회지
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    • 제4권
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    • pp.65-85
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    • 1992
  • The air waybill is supposed to be made out by the consignor. If the carrier makes it out, he is deemed, subject to proof to the contrary, to have done so on behalf of the consignor. The air waybill shall be made out in three original parts. The first part shall be marked "for the carrier", and shall be signed by the consignor. The second part shall be marked "for the consignee", it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier and handed by him to the consignor, after the goods have been accepted. According to the original Warsow Convention article 8, the air waybill must contain 17 particulars or items. However, the Hague Protocol reduced to three the number of particulars required to appear on the air waybill. Only one item is obligatory, namely, the notice that the carriage is subject to the rules of the Warsaw Convention. The absence of the air waybill entails unlimited liability of the carrier because it deprives him of the right to avail himself of the provisions of the Warsaw Convention which exclude or limit his liability. The consignor shall be liable for all damages suffered by the carrier or any other person by reason of the irregularity, incorrectness or incompleteness of the particulars and statements in the air waybill. Although the contract of the carriage of goods by air is not a formal contract, the document of carriage is issued. The issue of air wayhill is not essential for the existence or validity of the contract, but serves merely as a means of proof. The Hague Protocol has lessened the consequences of the carrier's neglect to faithfully accomplish the required formalities. Henceforth, these formalities no longer constitute legal obligations. The air waybill is the consignment note used for the carriage of goods by air. It is often called an air consignment note and is not a document of title or transferable/negotiable instrument. It is basically a receipt for the goods for despatch and is prima facie evidence of the conditions of carriage. Each of the original parts of the air waybill has evidential value and possession of his part is a condition for the exercise by the consignor or cosignee of his rights under the contract of carriage. Oveall, it is an usage that under a documentary letter of credit, the consignee on the air waybill is the opening bank of the letter of credit, and the notify party is the importer who applied for the letter of credit. In Korea there is an usage as to process of cargo delivery in air transportation as follows: The carrier carries the cargo into the bonded area of the airport and gives both the notice of arrival of the cargo and the consignee's air waybill to the notify party who is the importer. Then the notify party obtains the Letter of Guarantee from the opening bank in exchange for reimbursing the amount of the letter of credit or tendering the security therefor to the opening bank. The notify party then presents this document to the customs authorities for the process of customs clearance. The opening bank becomes a consignee only to ensure repayment of the funds it has expended, and the only interest of the opening bank as consignee is the reimbursement of the money paid to the exporter under the documentary letter of credit. Just as the bill of lading in maritime law, the air waybill has always been considered negotiable although the Warsaw Convention does not emphasize this aspect of negotiability. However, the Hague Protocol article 4 corrected the situation by stating that "nothing in this Convention prevents the issue of a negotiable air waybill." This provision officially recognizes that the air waybill must meet the needs of the present day business circles by being a negotiable instrument. Meanwhile, Montreal Additional Protocol no. 4 has brought important changes. Registration by computer is acceptable and the parties to the contract of carriage are allowed to replace the air waybill with a receipt for the goods. In conclusion, as the Warsaw Convention has not details of provisions relating to the issuing of the negotiable air waybill, it is hoped that there should be supplement to the Warsaw Convention and establishment of international commercial usage with regard to the negotiable air waybill.

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