UNCITRAL 전자양도성기록 모델법의 전자선하증권 적용에 관한 소고

Abstract

A primary reason that e-trade has not been prevalent is because there is no international consensus on how to recognize the electrical transfer of bill of lading.BRUNCITRAL enacted the Model Law on Electronic Transferable Records to promote the international transfer of electronic document or instrument such as electronic bill of lading and to ensure legal stability.BR The model law was enacted based on the principle of non-interference the substantive law, technological neutrality, and functional equivalence. The model law introduced the concept of ‘control’ in order to prevent the unauthorized duplication of electronic transferable records in electronic environments as infinite replication is possible and to apply the concept of possession, which is equivalent to paper-based transferable document or instrument or the factual dominance of transferable document or instrument, into electronic environments.BR The analysis of the possibility of collision between the electronic bill of lading of Bolero, essDOCS, e-B/L KOREA and the model law suggested that the majority of the model law did not conflict with or contradict the currently commercialized electronic bill of lading service. This is because the law referred to the existing electronic bill of lading in process and observed the technology-neutral principle during enactment. Replacement of a transferable document or instrument with an electronic transferable record needs to be improved for the exiting electronic bill of lading service.BR The model law is significant in that it not only gained international attention for the transfer of electronic bill of lading, but also has become the benchmark for enacting legislations on electronic document or instrument in each country.BR However, the model law is limited to a simple recommendation as we have seen from cases about UNCITRAL Model Law on Electronic Commerce and Model Law on Electronic Signatures.BR In order for electronic bill of lading to be as internationally prevalent as the paper ones, there needs the convention, something that goes beyond the model law. The prevalence of electronic bill of lading would be quicken if organizations that are influential in international trade such as UNCITRAL, International Maritime Organization (IMO), World Customs Organization (WCO), International Chamber of Commerce (ICC) should take initiatives towards the convention or agreement. An alternative could be mutually recognizing the use of electronic bill of lading among the FTA countries by adding the relevant clauses in their agreements.