선박집행의 실효성 확보에 관한 연구

Abstract

Abstract

A Study on Secure to Allow More Effective Arrest of Ships

Jeong, Hae Seok

Department of Maritime Law

The Graduate School of

Korea Maritime And Ocean University

Due to its geographic characteristics, South Korea has well-developed port facilities and relies on marine transportation for most of its international transportation. Vessels, the key part of international marine transportation, are the subject of many legal disputes. The provisional attachment of foreign vessels is one of the means used by Korean claimants to secure claims that arise from international marine transportation. They are resorting to this practice increasingly frequently in an increasingly tougher shipping market. However, the provisional attachment of foreign ships often proves difficult because of the procedural differences between South Korea and other countries. Therefore, there is a need to improve the domestic system and make it easier for domestic claimants to provisionally attach foreign vessels, by examining the salient points of The International convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships, 1952, and The International Convention on Arrest of Ships, 1999, which seek to strengthen the merits of the vessel execution systems of countries and harmonize them.

Thus, this paper investigates the problems of the vessel execution system of Korea and identifies five areas for improvement through legislation.

First, considering the unique characteristics of vessels—chief among them being the fact that they are in movement—it would be advisable to revise Article 173 of the Civil Execution Act and make it applicable, not only to the attachment of vessels, but also to the provisional attachment of vessels, rather than have Article 278 of the Civil Execution Act govern the matter. A proviso should be added to Article 278 of the Civil Execution Act, stipulating that “Article 173 shall apply to the provisional attachment of a vessel,” and the phrase “at the time of attachment” of Article 173 should be changed to “at the time when attachment takes effect”. With this amendment, the court with jurisdiction over the scheduled destination port would have jurisdiction over the vessel before its arrival, provided that the vessel’s ETA report has been filed.

Second, it would not be untoward to allow the local court to exercise international juridical jurisdiction, in view of the fact that there is no reasonable ground to believe that it would be unfair to the owner of the vessel, or that it would cause delays in the trial

and that it is not impossible to recover claims on the final ruling of the court as long as the foreign vessel is located in Korea. Thus, Article 14 of the Civil Procedure, which governs maritime competence, should have a second section that sets forth that “the jurisdiction court shall have marital competence in a case where provisional attachment is in effect for a foreign vessel or the claimant provides cash or a P&I Club letter of guarantee.” This would allow claimants to file lawsuits in Korea through provisional attachment of vessels.

Third, there have been no cases where a motion for the attachment of a vessel was denied because of conflicting interpretations of Article 744 of the Korean Commercial Code. Deleting Article 744, which imposes restricting conditions on the provisional attachment of a vessel, would not hurt the cargo interests, either, because the increased sophistication and the development of communications technology have made it fairly easy to procure substitute vessels, or release provisional seizures by providing security. In addition, the global legislative trend is to eliminate restrictions on the attachment of vessels that are ready for departure. It seems to be desirable that Article 744 should be deleted, from the viewpoint of both equity between Continental and Anglo-American law and of practical considerations.

Fourth, in the case of maintenance and preservation measures, large costs may occur, sometimes in excess of the claim, hurting the claimant’s interests. In addition, a number of factors can make it difficult to obtain a ship’s certificate of registry. 1). When the execution officer requests that the master of vessel provide the certificate, the master may refuse to furnish the document. And it will be difficult for the officer to search the ship and find the document on his own. 2) Even if the execution officer has obtained the certificate, he may be reluctant to keep the document for fear that he might lose it. 3) When the claimant withdraws the provisional attachment, speedy departure will be difficult for the ship because it takes considerable time to retrieve the certificate. While a Korean vessel can be provisionally attached by change of registry, this can’t prevent the movement of the vessel. This circumstance can give rise to new legal relations such as maritime lien, potentially eliminating the benefits of the efforts to preserve the claims. Thus, Article 712 of the old Civil Procedure Code should be revived.

Fifth, P&I Club letters of guarantee should be recognized for Korean vessels, too, in order to allow the shipowner to release and operate the vessel as soon as possible, provided that the terms and conditions of Article 13 of the Act on the Procedure for Limiting the Liability of Shipowners and the basic conditions for providing the letter of guarantee which used in the industry are met. Therefore, a new clause should be created in Article 299 of the Civil Execution Act (Revocation of Execution of Provisional Attachment), stipulating that “Clause 2 of Article 181 shall apply to the provisional attachment of a vessel.” This revision would be based on Article 13 of the Act on the Procedure for Limiting the Liability of Shipowners and the common practice in the provision of letters of guarantee. Furthermore, Clause 2 of Article 181 should be renamed “Revocation of Provisional Attachment by Deposit Guarantee in Lieu of Cash” and include a provision that allows the deposit of a letter of guarantee from the P&I Club for the release of a vessel.