In this study, It is examined to the Relation between a Claim for damages of the holder of the Bill of Lading and Claim for the price of Letter of Credit as main subject.
In detail looking into, as follows. Firstly, Whether it is real rights guar ...
In this study, It is examined to the Relation between a Claim for damages of the holder of the Bill of Lading and Claim for the price of Letter of Credit as main subject.
In detail looking into, as follows. Firstly, Whether it is real rights guaranteed by security or ownership transfer through entrust as a security right by way of trasfer that negotiating bank and opening bank take right.
Secondly, How it is theorized to aquire Bill of Lading when opening bank of Letter of Credit is stated as consignee.
Thirdly, Whether the Relation between a Claim for damages of the holder of the Bill of Lading and Claim for the price of Letter of Credit is The untruthful joint debt.
As result of previous rooking into(examination), it reaches to the conclusion that majority theory and judicial precedent is valid. the reason is as follows.
Firstly, When Bill of Lading is endorced and transferred to the negotiating bank, the right that it acquires about the carring goods is security by means of transfer and its regal characteristic is ownership transfer through entrust.
To theory so, it reflect balance of interest of negotiating bank and opening bank as creditor between import and export as debtor. and it is a objective and neutral theory that is harmonized with real right's validity of bill of lading.
Secondly, The seller as ownership transfers bill of lading for collection of the price of sale to the negotiating bank when bill discount is made by him. This is explained as follows. A seller as ownership has established security by means of transfer for the negotiating bank.
Thirdly, To acquire security by means of transfer, negotiating bank acquires ownership transfer through entrust by mere taking(receiving) bill of lading from seller as ownership. negotiating bank acquires security right by means of transfer about carring goods through obtaining Bill of Lading from seller as ownership.
Fourthly, Bill of Lading represent security right by means of transfer as ownership and also securities as claim to request to deliver cargo.
Like this, with two aspects in Bill of Lading, A security right by means of transfer as real right has different means of transfer as compared with endorsement as means of transfer of Bill of Lading as bond.
Namely, The means of transfer and acquisition of real right is delivery and registration. it needs to merely hand over Bill of Lading to a chattel mortgagee in order to establish security by means of transfer.
Fifthly, Negotiating bank acquires ownership over cargo and right of consignee in contract of carriage.
As a result, It acquires claim for delivery of cargo or claim for damage from default(breach of contract) and tort.
The sixth, It is security by means of transfer that negotiating bank and opening bank acquire through Bill of Lading. It's legal characteristics is ownership transfer through entrust. This opinion is valid.
The reason is as follows. In Letter of Credit transactions, an exporter tender as security to negotiating bank Bill of Lading over cargo delivered to carrier whereas a transfer movables security allows obligor to use goods in his possesion in civil law. Accordingly, it is not irrational to transfer ownership of cargo to security right holder. because a seller already has no possesion.
Seventhly, majority opinion is that relation between a claim for damages of the holder of the Bill of Lading and claim for the price of Letter of Credit is not the untruthful joint debt. This opinion is valid because of following reason.
If negothiating bank and opening bank demand excess amount of damages as opposite opinion insist(as like opposite opinion), in this case, negothiating bank and opening bank abuse his rights. And that exercise of rights is not in accordance with the principle of trust and good faith. to theorise like this as stated above, there have been only to do as it can be compensated for the damage really suffered.