REGULATION ON IMPLEMENTATION OF THE PROVISIONS OF THE COMMERCIAL ACT REGARDING ELECTRONIC BILLS OF LADING

Transcription

1 REGULATION ON IMPLEMENTATION OF THE PROVISIONS OF THE COMMERCIAL ACT REGARDING ELECTRONIC BILLS OF LADING Presidential Decree No , jun. 20, 2008 Amended by Presidential Decree No , May 4, 2010 Presidential Decree No , Nov. 2, 2010 Presidential Decree No , Mar. 23, 2013 Article 1 (Purpose) The purpose of this Decree is to provide for matters delegated pursuant to Article 862 of the Commercial Act and matters necessary for the implementation thereof. Article 2 (Definitions) The terms used in this Decree shall be defined as follows: 1. The term "electronic bill of lading" is a bill of lading prepared in the form of an electronic document and registered with a registry agency for electronic bills of lading under Article 862 (1) of the Commercial Act (hereinafter referred to as the "Act"); 2. The term "registry agency of bills of lading" (hereinafter referred to as "registry agency") means a person designated by the Minister of Justice to carry out works for the issuance, registration and transfer of electronic bills of lading, the conversion of such bills of lading into documentary bills of lading, and the preservation of relevant electronic records; 3. The term "register of rights to electronic bills of lading" (hereinafter referred to as "electronic register") means a register a registry agency shall keep for managing electronic bills of lading by electronic means in order to maintain records of the issuance, registration, and transfer of electronic bills of lading and the conversion of such bills of lading into documentary bills of lading; 4. The term "certified digital signature" means an electronic signature defined in subparagraph 3 of Article 2 of the Digital Signature Act; 5. The term "legitimate holder of an electronic bill of lading" means a person who holds an electronic bill of lading issued initially by the registry agency or a transferee of an electronic bill of lading; 6. The term "issuance and registration of an electronic bill of lading" (hereinafter referred to as "issuance and registration") means that a registry agency registers an electronic bill of lading in the electronic register upon a request of a carrier for the purpose of issuing the electronic bill of lading;

2 7. The term "closure of an electronic register" means a measure taken by a registry agency to prevent entries in an electronic register from being deleted, altered, or added. Article 3 (Requirements for Designation of Registry Agencies) (1) To be qualified for designation as a registry agency of electronic bills of lading under Article 862 (1) of the Act, a person shall meet all the following requirements: 1. The person shall be a corporation; 2. Technical capacity: the total number of its technical personnel under the following items shall be at least 12 persons: (a) One or more persons, each of whom possesses the qualification as an information and communications engineer, an information processing engineer, or an engineer specializing in application of electronic computer systems or a higher qualification under the National Technical Qualifications Act, or who possesses any of the qualifications specified and publicly notified by the Minister of Justice as a qualification equivalent to any of the aforesaid qualifications; (b) One or more persons, each of whom has an at least two-year career in the area of the protection of information or the operation and management of information and communications, as specified and publicly notified by the Minister of Justice; (c) One or more persons, each of whom completed an educational course provided by the Korea Information Security Agency under Article 52 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. with regard to facilities for certification works, the operation of equipment for certification, measures for emergency recovery, and countermeasures against violations; (d) One or more persons, each of whom has been engaged in a financial business related to international trade or a maritime logistics for at least three years; 3. Financial capacity: The person shall fully meet the following requirements for financial capacity: (a) The person shall own net assets worth at least 20 billion won (referring to the value of assets calculated by subtracting liabilities from total assets); (b) The person shall carry an insurance policy that covers losses that may be incurred to users intentionally or by negligence in connection with its business; 4. Facilities and equipment: The person shall be fully equipped with the following facilities and equipment: (a) Facilities and equipment with which a carrier, a shipper, a consignee, or any other user of a registry agency can register, endorse, transfer, or present an electronic bill of lading or exercise any right; (b) Facilities and equipment with which the date and time of transmitting or receiving an electronic bill of lading can be verified and records related to electronic bills of lading can be prepared and preserved;

3 (c) Protective facilities and equipment for protection necessary for the safe operation of facilities and equipment for the issuance and circulation of electronic bills of lading; (d) Other facilities and equipment necessary for the smooth and safe issuance and circulation of electronic bills of lading; 5. The person shall establish business rules for the registry agency, which shall contain general provisions regarding the execution of business affairs, including procedures and methods for managing and operating the facilities and equipment under items of subparagraph 4 and matters regarding the preservation of electronic bills of lading and related electronic records under Article 13. (2) If it is necessary due to a technical reason or any reason in connection with the use of a right for the purpose of paragraph (1), a person who has entered into a contract for the use of facilities and equipment for a specified period of not less than three years with a person who possesses facilities or equipment referred to in paragraph (1) 4 or a person who holds a right to such facilities or equipment shall be deemed equipped with the facilities or equipment referred to in paragraph (1) 4. Article 4 (Procedure for Designation of Registry Agencies) (1) A person who seeks to be designated as a registry agency shall file an application for the designation with the Minister of Justice, along with the following documents attached thereto. In such cases, the Minister of Justice shall verify the certificate of the corporate register and the certified transcripts of resident registration cards of the representative and executives of the corporation by using administrative information pursuant to Article 36 (1) of the Electronic Government Act, but shall require an applicant to submit such documents, if the representative and executives of the corporation do not consent to the verification of the certified transcripts of resident registration cards in such a way: <Amended by Presidential Decree No , May 4, 2010; Presidential Decree No , Nov. 2, 2010> 1. Articles of incorporation; 2. Evidentiary documents proving that the corporation has technical capacity, financial capacity, facilities and equipment, business rules, and other necessary matters referred to in subparagraphs of Article 3 (1); 3. A business plan; 4. A document certifying the execution of a contract and terms and conditions of the contract, where a contract is entered into for the use of facilities and equipment in accordance with Article 3 (2). (2) If necessary for examining the designation of a registry agency, the Minister of Justice may request an applicant to submit data or hear an applicant's opinion. (3) If the Minister of Justice deems it necessary as a result of an examination on business rules under Article 3 (1) 5, he/she may request the applicant to supplement the provisions thereof, and the applicant shall comply therewith in such cases, except in any extenuating circumstance. (4) Upon receiving an application for designation under paragraph (1), the Minister of Justice shall designate a person as a registry agency by taking into comprehensive consideration of the adequacy of net assets, technical personnel, facilities, and equipment and the capabilities of performing the business.

4 (5) When the Minister of Justice designates a registry agency, he/she shall issue a letter of designation, publish the designation of the registry agency, the name and address of the designated person, the date of designation, and other necessary matters through the Official Gazette, and give public notice thereof by posting the details on the web-site of the Ministry of Justice. Article 5 (Changes of Requirements for Designation) (1) When a registry agency intends to change a matter referred to in any subparagraph of Article 3 (1) after it was registered, it shall give notice thereof to the Minister of Justice without delay, along with documents certifying the intended change. (2) In receipt of notice under paragraph (1), the Minister of Justice shall examine the registry agency's technical capacity, financial capacity, the safety in the operation of facilities and equipment, and other relevant matters and may request supplements. Article 6 (Issuance of Electronic Bills of Lading) (1) When a carrier intends to issue an electronic bill of lading, it shall transmit an application for issuance and registration by an electronic document, containing the following information, to a registry agency along with the carrier's certified digital signature affixed thereon and a document (including an electronic document) that certifies that the shipper has consented to the issuance of the electronic bill of lading: 1. Descriptions under subparagraphs of Article 853 (1) of the Act; 2. The place of receipt or the place of delivery of the shipment; 3. The signature of the carrier or its agent, which shall be reproduced by electronic means. (2) When a carrier files an application for issuance and registration in accordance with (1), it shall send the standard terms and conditions of the relevant electronic bills of lading to the registry agency: Provided, That the standard terms and conditions may be omitted, if standard terms and conditions have been registered in advance with the registry agency. (3) Upon receiving an application for issuance and registration under paragraph (1), a registry agency shall enter the information referred to in subparagraphs of paragraph (1) and the standard terms and conditions for issuance in the electronic register and shall transmit the electronic bill of lading to the shipper immediately in an electronic document. (4) Where an electronic bill of lading has been issued, no delivery order under Article 852, 855, or 863 of the Act shall be issued. Article 7 (Charter Contracts and Electronic Bills of Lading) Where an electronic bill of lading is issued pursuant to Article 855 (1) of the Act, the carrier shall be deemed the shipowner, while the shipper shall be deemed the charterer. Article 8 (Transfer of Electronic Bills of Lading) (1) When the legitimate holder of an electronic bill of lading transfers electronic bills of lading, he/she shall prepare an electronic document stating his/her intention to endorse the same and then transmit it to the registry agency to request the registry agency to transmit it to the transferee, along with the electronic bill of lading attached thereto.

5 (2) An electronic document prepared for an application for transfer under paragraph (1) shall contain the following: 1. Information indicating the identity of the electronic bill of lading; 2. Information about the transferee; 3. The transferor's certified digital signature. (3) Upon receiving an application for transfer under paragraph (1), a registry agency shall enter details of the transfer, including the matters referred to in subparagraphs of paragraph (2), in the electronic register and then immediately transmit the details to the transferee by electronic document. (4) When a registry agency sends an electronic document to a transferee pursuant to paragraph (3), it shall notify the transferor of the fact with an electronic document immediately. (5) A transferee who intends to acquire an electronic bill of lading shall register information about him/ herself, in advance, including his/her name and resident registration number or his/her business registration number and address, with a registry agency. Article 9 (Modification to Descriptions of Electronic Bills of Lading) (1) When the legitimate holder of an electronic bill of lading intends to modify any description in the electronic bill of lading, he/she shall file an application for such modification with a registry agency by electronic document. (2) Upon receipt of an application for modifications under paragraph (1), a registry agency shall immediately give notice to the carrier of the application in an electronic document. (3) In receipt of notice under paragraph (2), a carrier shall notify the registry agency as to whether it consents to the modification in an electronic document. (4) In receipt of notice as to whether a carrier consents under paragraph (3) from the carrier, a registry agency shall notify the legitimate holder of the relevant bill of lading of details of the notice immediately in an electronic document. If a carrier consents to a modification to a description in such cases, the registry agency shall modify the description in the electronic register and shall give notice thereof to the carrier. Article 10 (Claims for Delivery of Shipments against Electronic Bills of Lading) (1) When the legitimate holder of an electronic bill of lading intends to have the shipment delivered, he/she shall prepare an electronic document stating his/her claim for delivery of the shipment and transmit it to the registry agency, along with the electronic bill of lading, and the registry agency shall transmit the claim to the carrier immediately in an electronic document. (2) Upon receiving a claim for delivery of the shipment under paragraph (1), a registry agency shall enter a statement that the relevant electronic bill of lading is no longer transferable in the electronic register. (3) If a carrier intends to refuse a claim for delivery of the shipment upon receiving a claim for delivery of the shipment under paragraph (1), the carrier shall transmit an electronic document stating his/her intention and the reasons therefor to the registry agency, and the registry agency shall transmit the electronic document immediately to the legitimate holder of the electronic bill of lading who claims for delivery of the shipment.

6 Article 11 (Delivery of Shipments and Return of Electronic Bills of Lading) (1) Upon receiving a claim for delivery of shipment through a registry agency, a carrier shall verify whether the claimant is the legitimate holder of the electronic bill of lading on the electronic register before delivering the shipment. (2) When a carrier completes the delivery of a shipment, it shall notify the registry agency of the recipient and the date of delivery by electronic document, and upon receiving such notice the registry agency shall enter the details in the electronic register immediately, close the electronic register, and give notice thereof to the carrier and the recipient in an electronic document. (3) When a shipment is delivered in accordance with paragraphs (1) and (2), the relevant bill of lading shall be deemed returned to the carrier. Article 12 (Conversion into Documentary Bill of Lading) (1) Upon receiving a request from the legitimate holder of an electronic bill of lading to convert the electronic bill of lading into a documentary bill of lading, a registry agency shall issue the documentary bill of lading to the legitimate holder. In such cases, a name and seal or signature reproduced by electronic means shall be deemed the name printed and seal or signature affixed in accordance with Article 853 (1) of the Act. (2) A registry agency shall notate records of transfers of an electronic bill of lading on the back of the relevant documentary bill of lading under paragraph (1). (3) Records of transfers notated on the back of a documentary bill of lading pursuant to paragraph (2) shall be as effective as endorsements. (4) When a registry agency issues a documentary bill of lading pursuant to paragraph (1), it shall notate the conversion into the documentary bill of lading in the electronic register, close the electronic register of the relevant electronic bill of lading, and notify the relevant carrier of the fact in an electronic document. (5) A registry agency shall be deemed to guarantee the accuracy of notations in a documentary bill of lading converted and issued pursuant to paragraph (1). Article 13 (Preservation of Electronic Bills of Lading, etc.) The business rules of a registry agency under Article 3 (1) 5 shall provide that electronic records related to electronic bills of lading and the issuance, transfer, acquisition, conversion, and modification of electronic bills of lading shall be preserved for a period not less than those specified as follows: 1. Ten years from the date of delivery, where the delivery of a shipment is complete; 2. Ten years from the date of registration of records of an electronic bill of lading, where a shipment fails to bedelivered; 3. Ten years from the date of closure of the electronic register of the relevant electronic bills of lading, where the electronic bills of lading has been converted into a documentary bill of lading. Article 14 (Supervision, etc.) The Minister of Justice may supervise registry agencies to ensure that they comply with the Act and this Decree, and may conduct inspections on technical capacity and financial capacity of registry agencies and

7 the safe operation, etc. of their facilities and equipment under Article 3 (1). Article 15 (Revocation of Designation) (1) The Minister of Justice may revoke the designation of a registry agency, if it falls under any of the following subparagraphs: 1. If it is discovered that a registry agency was designated by fraud or other wrongful means; 2. If a registry agency substantially violates a requirement for designation referred to ini any subparagraph of Article 3 (1); 3. If a registry agency practically closes its business as a consequence of a corporate merger, bankruptcy, business closure, etc. (2) When the Minister of Justice intends to revoke designation pursuant to paragraph (1), he/she shall hold a hearing. (3) When the Minister of Justice revokes designation pursuant to paragraph (1), he/she shall give public notice on such revocation without delay by publishing details thereof in the Official Gazette and posting such details on the web-site of the Ministry of Justice. (4) The Minister of Justice may permit a registry agency, the designation of which is revoked pursuant to paragraph (1) to continue operating its business related to transfers of electronic bills of lading already issued and registered before the revocation, require such a registry agency to transfer relevant electronic records to another registry agency for preservation or to convert electronic bills of lading into documentary bills of lading under Article 12, or take any other necessary measure. Article 16 (Requests for Cooperation) If necessary to carry out works related to the designation, etc. of registry agencies, the Minister of Justice may request the Minister of Strategy and Finance, the Minister of Trade, Industry and Energy, the Minister of Oceans and Fisheries, the Financial Services Commission or other agencies to cooperate in such works. <Amended by Presidential Decree No , Mar. 23, 2013> ADDENDUM <Presidential Decree No , Jun. 20, 2008> This Decree shall enter into force on August 4, ADDENDA <Presidential Decree No , May 4, 2010> Article 1 (Enforcement Date) This Decree shall enter into force on May 5, 2010 Articles 2 through 4 Omitted. ADDENDUM <Presidential Decree No , Nov. 2, 2010> This Decree shall enter into force on the date of its promulgation.

8 ADDENDA <Presidential Decree No , Mar. 23, 2013> Article 1 (Enforcement Date) This Decree shall enter into force on the date of its promulgation. Articles 2 and 3 Omitted.