선원근로계약의 준거법 결정원리

Abstract

In principle, under Article 25 of the Korean Private International Law (hereunder, the KPIL), the parties to a seafarer's labor contract may choose the law governing the contract. However, the KPIL amends the principles of Article 25 for labor contracts in accordance with the need to protect the social and economically weak. In the case of labor contracts, even if the parties choose the applicable law, the protection given to workers cannot be deprived under the mandatory regulations of the country under the applicable law designated by Article 28, Paragraph 2 of the KPIL. Accordingly, it is expected that the provisions of the Labor Standards Act and the Seafarers Act related to the labor protection of seafarers, and the mandatory regulations of the Maritime Labor Convention will complement the principle of party autonomy. In addition, if the parties do not designate the law governing the contract, the contract shall be governed by the laws of the country most significantly related to the contract in accordance with Article 26 of Private International Law. If the parties do not choose the applicable law, however, the law governing the labor contract shall be governed by the laws of the state where workers routinely provide labor, notwithstanding the provisions of Article 26 of the KPIL. Also if a worker does not routinely provide labor within a country, the law of the country in which the employer employs the worker is the law governing the contract. Due to the peculiarity of the seafarer's labor contract, however, despite the provisions of Article 28 of the KPIL, there are questions of 'where is the country where workers routinely provide labor' and 'what is the employed office', with regard to the interpretation of Article 28 (2) of the KPIL. Considering the shipping practice comprehensively, the objective governing law of the seafarer labor contract should be regarded as the laws of nations where the location of the shipowner's headquarters or the location of the shipowner's business office. However, in spite of the objective governing law determination principle above, in order to faithfully implement the ideology of the private international law, it is necessary to comprehensively review whether or not the law of the ship owner's place of business is most closely related to the labor contract in each case. On the other hand, when determining the objective governing law of the seafarer's labor contract, if there is a lack of genuine relationship between the flag state of the ship and the seafarer's labor contract, and it is clear that the shipowner intends to use the poor working conditions of the country where the flag of convenience is located, the court shall make a decision in full consideration of the purpose of Article 8 of the KPIL. Article 3, Paragraph 1 of the Korean Seafarers Act (hereunder, the KSA) stipulates that the Act applies exclusively to the labor contracts of seafarers aboard certain ships prescribed by the Act. However because if the KSA is exclusively applied to seafarer labor relations, there is a possibility of conflict of norms with respect to the application of the mandatory provisions of the Maritime Labor Convention as well as the principle of party autonomy stipulated in Article 25 of the KPIL may be violated, the abolition of Article 3, Paragraph 1 of the KSA or legislative improvement is necessary.