보세창고업자의 법률관계
- 발행기관 고려대학교 대학원
- 발행년도 2004
- 학위명 박사
- 학과 대학원:법학과
- 식별자(기타) DL:000014914235
- 서지제어번호 000045159287
초록/요약
보세창고는 특허보세구역으로서의 셩격과 화물보관창고로서의 성격을 가진다는 점에서 공법적 규율의 대상인 동시에 사법상 거래의 주체임을 알 수 있다. 이러한 이중적 지위로 인하여 보세창고업자의 법적 지위에 관하여 혼란이 발생할 여지가 있는 바, 본 논문은 보세창고업자의 공사법적 지위에 관하여 고찰하였다. 통관절차상 공법적 규율을 위하여 관세법규의 적용을 받는 동시에, 창고업자로서 임치계약을 체결한 당사자와의 관계에서 민상법상의 권리의무를 갖는다. 이 때 실무상 임치계약을 명시적으로 체결하는 경우가 거의 없으므로, 임치계약체결 당사자를 확정하는 것이 중요하다. 수입화물의 관세징수를 위한 일시장치를 목적으로 보세창고를 운영한다는 측면에서 상거래의 반복성과 정형성을 인정할 수 있는 바, 수입화물의 운송계약상 사실상의 지배는 하역시에 수하인에게 이전되는 경우를 일반적인 경우로 볼 수 있을 것이다. 그렇다면 이러한 경우에는 수하인과의 관계에서 창고임치계약상의 권리의무를 인정할 수 있을 것이다. 그러나 복합운송주선업자의 관여 등으로 인하여, 보세창고업자가 운송인과의 창고임치계약을 체결한 것으로 보아야 할 경우에, 보세창고업자는 수하인에게 운송인의 지시에 따라서 운송물을 인도하여야 할 것이며, 이를 위반할 경우에는 채무불이행 책임 내지는 불법행위 책임을 부담하게 된다. 만약 수하인의 수령지체가 발생하였다면 운송인은 일정한 요건하에 보세창고업자에게 운송물을 인도함으로서 수하인에게 인도한 것으로 간주된다. 또한 보세창고업자는 관세징수의 확보를 목적으로 관세법상의 제반 책임을 부담하게 된다.
more목차
目 次
第1章 序論 ··············································································1
第1節 硏究의 目的 ·····································································1
第2節 硏究의 方法 ·····································································2
第2章 倉庫業者의 地位 ··························································5
第1節 倉庫業 槪觀 ·····································································5
1. 沿革 ··················································································5
2. 倉庫業의 유형 및 적용법률 ··················································6
가. 구 화물유통촉진법(2000. 12. 29. 법률 제6305호에 의하여 개정되기 전의 것)에 의한 구분 ······································6
나. 명칭에 의한 구분 ··························································7
다. 기타 ············································································9
第2節 商法上 倉庫業者의 地位 ·····················································9
1. 商法上 倉庫業者의 개념 ·····················································10
가. 창고의 이용 ·······························································10
나. 보관 목적물 ·······························································10
다. 거래상대방의 존재 ······················································11
라. 보관 업무 ··································································11
마. 영업성 ·······································································12
2. 倉庫任置契約의 성격 ··························································13
3. 商法上 倉庫業者의 권리 ·····················································14
가. 보관료청구권 ······························································14
나. 비용상환청구권 ···························································17
다. 유치권 ·······································································17
라. 공탁권, 경매권 ····························································18
마. 손해배상청구권 ···························································19
바. 단기소멸시효 ······························································1
