[2] In a case where Gap corporation filed an application for provisional attachment with regard to Eul corporation Byung's claim for transportation charges against Eul corporation Byung as the preserved claim with regard to the unpaid lease charges against Eul corporation as the preserved claim, and sought the payment of the amount to Byung corporation upon receiving the attachment and collection order, the case holding that the expiration of the exclusion period for the transportation charges claim should be determined as of the date of application for provisional attachment by Gap corporation

[2] In a case where Gap corporation filed an application for provisional attachment with regard to Eul corporation Byung's claim for transportation charges against Eul corporation Byung as the preserved claim against which the claims such as unpaid lease charges were preserved, and sought payment against Byung corporation by accepting the attachment and collection order, the case holding that the expiration of the exclusion period for transportation charges claims should be determined on the basis of the date of application for provisional attachment as to the transportation charges claims, and that the delivery date, etc. is obvious in light of the empirical rule as the date of issuance of bills of lading or the date of entry and departure of the ship, and thus, it should be deemed "the date of delivery or delivery of cargo," which is the starting date of the exclusion period

The defendant shall pay to the plaintiff 128,945,857 won with 5% interest per annum from October 1, 2010 to April 3, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. Of the costs of lawsuit in the first and second instances, 10% is borne by the Plaintiff, and 90% is borne by the Defendant, respectively.

The defendant shall pay to the plaintiff 146,935,457 won with 20% interest per annum from October 1, 2010 to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The following facts are not disputed between the parties, or acknowledged in full view of Gap evidence Nos. 1 through 4, and 8 (including paper numbers; hereinafter the same shall apply) and the purport of all pleadings.

A. The Plaintiff entered into a lease agreement with the non-party S&D Co., Ltd. (hereinafter referred to as “non-party company”) on the lease of the Plaintiff’s container to the non-party company. However, the non-party company did not pay the Plaintiff the usage fee under the lease agreement, and some containers were lost.

B. On March 17, 2009, the Plaintiff filed an application for provisional attachment against the claim of KRW 147,000,000, which the non-party company had against the Defendant, based on the claim of KRW 35,538,183,593, the sum of the amount of the unpaid lease and container loss incurred to the non-party company, as the preserved claim, and the provisional attachment against the claim of KRW 147,00,000, which the non-party company had against the Defendant was issued on March 19, 209.

C. After that, on March 3, 2009, the Plaintiff filed an application against the non-party company for a payment order based on the above unpaid lease fees and other claims, and on June 3, 2009, the payment order was finalized to the effect that “the non-party company shall pay to the Plaintiff KRW 35,538,183,593, and delay damages.”

D. On August 21, 2009, the Plaintiff was issued an order of seizure and collection, which transferred the provisional seizure to the provisional seizure as the above court No. 2009TT 247999, and on January 18, 2010, issued an order of seizure and collection as the above court No. 2010T 1178. Each of the above orders was served on each Defendant on September 11, 2009 and January 22, 2010.

2. Judgment on the defendant's main defense of safety

A. The parties' assertion

(1) Defendant

According to Article 814(1) of the Commercial Act [Article 811 of the former Commercial Act (amended by Act No. 8582 of Aug. 3, 2007; Articles 811 and 811 of the former Commercial Act)], a carrier’s claim for transportation fee is extinguished, regardless of the cause of the claim, without a judicial claim within one year from the date when the carrier delivers or delivers the cargo to the consignee. The Plaintiff claims against the Defendant of the non-party company based on the non-party company’s claim for transportation fee against “the date when the non-party company delivers or delivers the cargo” or from October 2008 to September 14, 2010, which is “the date when the non-party company delivers or delivers the cargo.” Accordingly, the Plaintiff’s claim for exclusion of this case is unlawful and dismissed.

(2) Plaintiff

(A) Although the Defendant was able to make the above main defense during the preparatory date for pleading or the date for pleading of the first instance court four times or more, he neglected it by intention or gross negligence, and later, submitted the said defense method to the appellate court at the latest and delay the conclusion of the lawsuit. Thus, the above main defense of the Defendant’s main defense is the defense method for the actual time, and shall be dismissed pursuant to Article 149(1) of the Civil Procedure Act.

(B) The exclusion period under Article 814(1) of the Commercial Act is completed only when a carrier has not filed a judicial claim within one year from the date when the carrier delivers or delivers the cargo to the consignee. As seen above, the Plaintiff filed a judicial claim against the Defendant of the non-party company through a provisional attachment on March 17, 2009. If so, from October 2008 to October 2008 on the date when the cargo was delivered, the exclusion period has not yet been completed. Accordingly, the main safety objection against the exclusion period of the Defendant is without merit.

B. Determination

(1) Whether the act constitutes a means to defend against the actual time limit

The claims and obligations of the carrier against the charterer, consignor, or consignee of the first instance judgment shall be terminated if no judicial claim is made within one year from the date when the carrier delivers or delivers the cargo to the consignee, regardless of the grounds for the claims, and the above period shall be examined ex officio as to whether the period for filing the lawsuit complies with the above period (see Supreme Court Decision 2007Da16113, Jun. 28, 2007, etc.). Ultimately, the period prescribed in Article 814(1) of the Commercial Act shall be the exclusion period, which is an ex officio investigation of the court. Thus, it shall not be a matter that can be dismissed by the means of attack and defense against the actual time limit due to its nature. In addition, according to the records of this case, the defendant can be found to have submitted the first instance judgment on July 4, 2011, which is before the date for filing the first instance judgment, and even if considering the point of time for filing the appeal, it is difficult to see that the plaintiff's allegation was made late or late due.

(2) Whether the exclusion period has lapsed

(A) issue of interpreting a judicial claim

The exclusion period under Article 814 (1) of the Commercial Act is completed unless there is a "judicial claim" within one year from the date when the carrier delivers or delivers the cargo to the consignee. We examine whether the above judicial claim includes the application and decision of provisional seizure as claimed by the plaintiff.

① Article 814(1) of the Commercial Act is interpreted as accepting the provision of Article 3(6)1 of the International Convention for the Unification of the Specific Rules of the 1968 Bill of Lading and the revised statement of opinion for the purpose of unification of the said Act. It is reasonable to interpret that, in relation to the interpretation of the above Hague-Seviby Rules and the “judicial Claim” under Article 814(1) of the Commercial Act, it is reasonable to interpret that the Plaintiff’s claim should be broadly interpreted as including the Plaintiff’s claim for exclusion and provisional seizure as the basis of the obligee’s claim under Article 814(1)1 of the Commercial Act, as long as it appears that it is reasonable to interpret that the period of exclusion and provisional seizure should be limited to the Plaintiff’s claim for a limited period of time, not to refer to the case of narrow meaning, but to the case of judicial request or claim within the meaning of broad meaning. Therefore, it is reasonable to interpret that the Plaintiff’s claim for exclusion and provisional seizure should also be interpreted as including the obligee’s claim for exclusion and provisional claim.

(B) Determination as to whether a specific exclusion period is expired

Then, it is examined whether the shipping date or delivery date of the bill of lading of this case, which is the cause of the plaintiff's claim, can be known through the bill of lading of this case and the statement on the current status of the attempted cargo of this case, was reverse from the date of the plaintiff'

The date of issuance of a bill of lading, the date of entry into and departure from a ship, and the details of claims for transportation fee are as shown in the list of [attached Form]. However, it is not clear in the records of this case whether the "date of delivery or delivery of cargo by a small company", which is the date of the exclusion period under Article 814(1) of the Commercial Act, is the date of delivery of cargo, but it is clear in light of the empirical rule that it is subsequent to the date of issuance or entry into and departure from a ship, since the delivery date, etc. is not the date of issuance of a bill of lading or the date of arrival or departure of a ship as stated in the list (attached Form). Thus, it is reasonable to judge whether the period of exclusion is completed based on the date of issuance or

Therefore, in light of these standards, examining what the exclusion period has lapsed specifically among the above transport charges claims, the relevant items of claims (attached Form) for which one year has passed since it was retroactively calculated from March 17, 2009, which was the date of the application for the provisional attachment of the plaintiff, among the transport charges claims stated in the list (attached Form) is apparent from Nos. 1 to 12, 101, 111, and 112. Thus, even if it was based on March 17, 2009, which is the date of the above provisional attachment application of the plaintiff, KRW 17,989,60, 600, the sum of the corresponding amount of claims is 146,935,457, which is the sum of the amount of the transport charges claims claimed by the plaintiff as the lawsuit of this case, it is reasonable to dismiss it since it is inappropriate to exclude the exclusion period.

Thus, the defendant's main defense is partially justified within the scope of the above recognition.

3. Judgment on the ground of the plaintiff's claim

A. Whether the non-party company's claim for transportation fee against the defendant exists

(1) From the end of 2008, the Defendant asserts that since the financial crisis of the entire C&C group to which the non-party company belongs, the non-party company was also suspended from its business since December 2008, the non-party company did not actually request the transportation of cargo from the defendant.

In light of the facts and circumstances revealed in light of the overall purport of Gap evidence Nos. 5 through 7 and arguments, and various circumstances revealed in light of these facts, especially the statement of attempted freight (Evidence No. 5) prepared by the non-party company from Dec. 2, 2007 to Dec. 2, 2008 reveal the details of transporting the defendant's cargo. The sum of unpaid amount is KRW 146,935,457. The sum of bill of lading No. 109 issued by the non-party company (Evidence No. 6) shows the details of transporting the defendant's cargo. The above bill of lading and statement of attempted freight statement are consistent with the above details of statement of attempted freight charges. The above bill of lading and statement of accounts contain the specific vessel operation information of the non-party company, which is consistent with the information No. 7) about the above specific vessel on the homepage No. 97, the total sum of charges and charges No. 97, which can be recognized by the non-party No. 1 and the non-party No. 15's. 97.

(2) Therefore, barring any special circumstance, the Defendant is obligated to pay the Plaintiff, the person holding the right to collect the transportation charge claim against the Defendant of the non-party company the amount of KRW 128,945,857 of the transportation charge claim and the damages for delay at each rate of 5% per annum under the Civil Act from October 1, 2010, the day following the delivery of a copy of the complaint of this case, to April 3, 2012, which is deemed reasonable for the Defendant to dispute the existence and scope of the obligation.

B. The defendant's defense of repayment of the above transportation charges

The defendant asserts that from December 2007 to September 2008, the non-party company paid USD 371,002.26 in excess of the unpaid transportation fee of the plaintiff 146,935,457.

According to the evidence Nos. 2 and 3 of this case, it is recognized that around January 25, 2008 deposited USD 34,287.79 into the account of the non-party company, and that around that time, the non-party company remitted USD 371,002.26 to the non-party company from September 23, 2008. Meanwhile, considering that the sum of the amount claimed by the defendant as the plaintiff exceeds twice the amount of the claim of this case, it is difficult to view that the plaintiff paid it as the source of the claim of this case. Considering the fact that the non-party company and the defendant entered into a freight transport contract frequently for a considerable period of time and paid it frequently, it is difficult to view that the above money was deposited in the non-party company as the evidence of this case, and there is no evidence related to the plaintiff's claim of transportation charges of this case, and there is no reason to view it as the non-party company's non-party company's non-party company's non-party company's non-party defense to this case.

4. Conclusion

Since the part of the plaintiff's claim amounting to KRW 17,989,600 among the lawsuits of this case is inappropriate, the remaining claims shall be dismissed, and the part against the defendant ordering payment in excess of the above recognized amount is unfair. Thus, among the judgment of the court of first instance which has different conclusions, the part against the defendant is revoked in part of the defendant's appeal, and the plaintiff's appeal corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit.

[Attachment] List: omitted

Judges Kim Sang-hoon (Presiding Judge)

주1) “Subject to paragraph 6 bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action arisen.”

2) Gap evidence 6-1 186,380 won + the freight 51,542 won related to Gap's bill of lading 51,542 + the freight 464,177 won related to Gap's bill of lading 6-3 + the freight 208,208,208 related to Gap's bill of lading 6-1 + the freight 237,800 won related to Gap's bill of lading 6-6-6 bill of lading + the freight 6,384,802 won related to Gap's bill of lading 7-60-6 bill of lading + the freight 2,986,533-6 of Gap's bill of lading 80-70-6 bill of lading ＋ the freight 80-60-6 bill of lading ＋ the freight 1,093,80-60-6 bill of lading ＋ the freight 80-16-2, Gap's bill of lading 280-16-60