선하증권상의 법정선택조항의 법리

• 영문명: Legal Theory on the Forum Selection Clauses in Bill of Ladings
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 한철(Cheol Han)
• 간행물 정보: 『비교사법』비교사법 제11권 3호, 405~426쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.09.01

영문 초록

There are legitimate reasons for enforcing Forum Selection Clauses. That said, courts and scholars were too hasty to jump from non-enforcement to specific enforcement without considering whether a damages remedy is a more preferable means of enforcement. There is no reason to deny specific enforcement of an Forum Selection Clause where the parties freely negotiate such a clause. However, with respect to consumer adhesion contracts, a court should allow a consumer to pay damages in lieu of dismissal. Such a remedy would give sophisticated parties their only interest in such clauses, namely saving money, while at the same time allowing consumers to avoid the unnecessary harshness of specific enforcement. Granted, in many cases, a court will specifically enforce an Forum Selection Clause because the plaintiff will be unwilling pay the costs of litigating in a convenient forum. However, where a consumer is willing and able to pay the non-breaching party's expectation interest in the Forum Selection Clause, a court has no reason to specifically enforce the Forum Selection Clause and various reasons to award damages in lieu of dismissal. Because the sophisticated party is still afforded an opportunity to show that it will suffer irreparable harm if the court does not specifically enforce the Forum Selection Clause, the sophisticated party cannot complain if it receives damages. Under the current state of the law, a consumer carries a near-insurmountable burden of showing serious inconvenience or some other equitable reason why an Forum Selection Clause should not be enforced. Allowing a consumer to breach an Forum Selection Clause and pay damages is a more preferable remedy, and courts and scholars should consider this alternative approach to the enforcement of Forum Selection Clauses with more scrutiny.

목차

Ⅰ. 서 론

Ⅱ. 국제해상관계조약과 법정선택조항

Ⅲ. 미국의 해상법과 법정선택조항

Ⅳ. 여타 국가의 해상법과 법정선택조항

Ⅴ. 해상법의 통일적 해석을 위한 국제적 노력

Ⅵ. 맺음말

참 고 문 헌

【ABSTRACT】