[1] Legal effect of issuance of a bill of lading

[2] The elements for establishing and disclosing the security for movable property

[3] In a case where a bank entered into an import transaction agreement for the establishment of a security for transfer with an imported goods and acquires a bill of lading prior to the statutory due date of national taxes, the time when the security for transfer is established and whether the bank bears a physical tax liability

[1] A bill of lading is a securities which proves that a marine carrier has received the cargo and bears the obligation to deliver the cargo to a legitimate holder at the designated port of unloading. A claim relationship between a carrier and the holder of the securities takes effect in accordance with the statement of securities between the carrier and the holder of the securities. A disposition of the cargo takes effect in relation to the cargo. When the parties to the disposition of the cargo have delivered the cargo to the person entitled to receive the cargo, the disposition of the cargo must be made as a securities, and when the cargo has been delivered to the person entitled to receive the cargo, the same real right has the same effect as the delivery of the cargo. As such, a consignee who has taken over the right to the cargo or a person thereafter acquires the right to the transport contract with the effect of delivery of the bill

[2] The transfer for security is established by means of a contract for the transfer for security and the method of public disclosure necessary for the transfer of the right. In the case of the transfer for security for movable property, the transfer of the object should be made by means of public disclosure.

[3] In a case where a bank concludes an import transaction agreement for the establishment of a security for transfer of an imported goods and acquires a bill of lading from an importer before the statutory due date of national tax, the security for transfer of movable property on the imported goods is established on the date on which the bank acquires a bill of lading having the same effect as that of the delivery of the goods and does not need to meet the requirements for setting up against a third party separately. Thus, the physical tax liability of a mortgagee in this case shall be determined on the basis of whether the mortgagee acquired a bill of lading prior to the statutory due date of national tax, and shall not be determined after the date of the statutory due date of national tax and the fixed date of the receipt of the contract for transfer of movable property, and even if the bank obtained a fixed date after the statutory due date of national tax, it is not required to bear the physical tax liability for transfer of security based on the property

[1] Articles 131, 132, 133, and 820 of the Commercial Act / [2] Article 372 of the Civil Act / [3] Article 42 of the Framework Act on National Taxes, Article 372 of the Civil Act / [Security for Transfer and Provisional Registration for Transfer] Article 372 of the Civil Act, Article 133 of the Commercial Act

[1] Supreme Court Decision 82Meu1533 delivered on March 22, 1983 (Gong1983, 734)

Seoul Bank (Attorney Ahn Young-young, Counsel for defendant-appellee)

Korea

Daegu High Court Decision 96Na6067 delivered on April 11, 1997

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. On the first and second grounds for appeal

A bill of lading is a securities which proves that a marine carrier has received the cargo and bears the obligation to deliver the cargo to a legitimate holder at the designated port of unloading. A claim relationship between a carrier and the holder of the securities takes effect according to the statement of securities (Articles 820 and 131 of the Commercial Act). A disposition on the cargo between the parties who dispose of the cargo must be made as a securities and a real right has the same effect as the delivery of the cargo to the person entitled to receive the cargo (Articles 820, 132, and 133 of the Commercial Act). Thus, the consignee who takes over the right to the cargo has the same effect as the delivery of the cargo to the person entitled to receive the cargo (Articles 820, 132, and 133 of the Commercial Act). The consignee who takes over the right to the cargo at the designated port of unloading acquires the right to the transport contract with the delivery of the cargo as well as the possession of the object by transfer with the real right effect and acquires the ownership of the cargo (see Supreme Court Decision 82Meu1533, Mar. 2222, 19, 1983).

According to the court below's decision, according to the import transaction agreement between the plaintiff and the non-party Steel Co., Ltd. on December 17, 1993, the non-party company agreed to transfer the goods imported by the non-party company to the plaintiff in the future in order to secure the plaintiff's obligation to pay the import price or the loan for the settlement of the purchase price (the contract was concluded again on May 19, 1994, but it is only the specific confirmation of the above import transaction agreement, and even if there was no transfer contract as of May 19, 194, the plaintiff acquired the right to transfer the above goods at the time of acquiring the bill of lading on May 20 of the same year, and since the above goods were acquired on July 15 of the same year, the non-party company acquired the right to transfer the above goods to the plaintiff, and therefore, the court below's decision did not err in the misapprehension of the legal principles as to the property security under the proviso of Article 2 of the Framework Act on National Taxes before the statutory date of the national tax.

2. On the third ground for appeal

As seen above, the transfer of movable property for the instant imported goods is deemed to have been established on the date on which the Plaintiff acquired a bill of lading having the same effect as the delivery of the instant goods, and in this case, it is not necessary to satisfy the requirements for setting up against a third party separately by the fixed date. Therefore, the physical tax liability of the instant mortgagee should be determined on the basis of whether the mortgagee acquired the bill of lading for the instant goods prior to the statutory due date of national tax.

Therefore, it is proper for the court below to determine that the obligation to pay the physical tax in the case of security for movable property shall not be borne by the property transferred for security acquired before the statutory due date, even if the plaintiff obtained the fixed date in the contract for security for the property of this case after the statutory due date of national tax, since the issue of the obligation to pay the physical tax in the case of security for movable property shall not be done after the date of national tax payment and the fixed date of the contract for security for movable property transfer after the statutory due date of national tax, and there is no error in the misunderstanding of legal principles as to

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)