국제교역촉진과 유통증권(화물상환증 등)의 물권적 효력에 관한 연구

초록

A study on the Commercial Act's provision and its interpretation shall not be separated from the real economy. So I see it a serious problem that there are instabilities in the interpretation of the proprietary right(ownership) on the currency securities(bill of lading etc.). As long as the bill of lading is issued, it is natural to dispose the freight with(through) the bill. Thus, the Commercial Act §132 is set down ,which means 'without its delivery, no disposal of the freight'. This aims to achieve the pristine objective of the security's proprietary right(ownership), which is not meaningless. So it should not be taken as vain. The 'disposal' by the Act §132 comprises both disposal based on the credit and the ownership(possessory right). In addition, there are various views presented on the interpretation of the Commercial Act §133. The Theory of Relativity stands on the premises that transmigrating ownership(possessory right) by the Article §133 of the Commercial Act is closely related with the Civil Act §190. The strict Theory of Relativity explains the Commercial Act §133 is only an example of Civil Act §190. So Transferring requirements of Civil Act §450(regardless of the Commercial Act §133) is also required in this strict Theory. And Representation theory requires the carrier's direct occupation of the baggages, though it sees the Commercial Act §133 as closely related with the Civil Act §190. It insists that transferring Securities represents the transfer of indirect occupation of the baggages. And the Theory of Absoluteness see the Commercial Act §133 as the Civil Act §190's special provision. It does not require further the Civil Act §450 when tranferring the right of the baggage through the bill. On the other hand, the Security's Theory explains that the Commercial Act §133 is only showing the method of transferring rights embodied in the securities, differing from the Civil Act §450. It can overcome the weaknesses of other theories. The various provisions of the Commercial Law should show the accurate and stable standards in domestic and international trades and secure the legal stability. If so, Korea's economy can progress beyond the slow growth and recession.

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