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| 국제법 연구자료 ㅡ 인코텀스 Incoterms 2010, 2020 |
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2018-10-02 11:51:24 |
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외국과의 거래에서 안전한 계약서 작성은 무엇보다 중요합니다.
상대가 납득할 수 없는 부당한 조건으로 급히 체결된 계약은 결국은 파기되고 고소와 소송으로 가는 경우가 많습니다.
국제법률연구원은 국제법 정보를 신속하게 제공하는 목적이며, 국가별 관습까지 고려한 안전한 계약으로 검토해 드립니다.
무역에 자주 사용되는 용어.
O/A: Open Account
L/C: Letter of Credit
D/P: Documents Against Payment
D/A: Documents Against Acceptance
EXW: EX WORKS
FCA: FREE CARRIER
CPT: CARRIAGE PAID TO
CIP: CARRIAGE AND INSURANCE PAID TO
DAT: DELIVERED AT TERMINAL
DAP: DELIVERED AT PLACE
DDP: DELIVERED DUTY PAID
FAS: FREE ALONGSIDE SHIP
CFR: COST AND FREIGHT
CIF: COST INSURANCE AND FREIGHT
FOB: FREE ON BOARD ㅡ is a term in international commercial law specifying at what point respective obligations, costs, and risk involved in the delivery of goods shift from the seller to the buyer under the Incoterms standard published by the International Chamber of Commerce. FOB is only used in non-containerized sea freight or inland waterway transport. As with all Incoterms, FOB does not define the point at which ownership of the goods is transferred. The term FOB is also used in modern domestic shipping within the United States to describe the point at which a seller is no longer responsible for shipping cost. Ownership of a cargo is independent from Incoterms. In international trade, ownership of the cargo is defined by the bill of lading or waybill.
* Incoterms (인코텀스)
2018년 현재는 International Chamber of Commerce (ICC)의 INCOTERMS 인코텀스 2010을 따르며 2020은 2019년 4분기에 발표될 예정입니다.
Under the Incoterms 2010 standard published by the International Chamber of Commerce, FOB is only used in sea freight and stands for "Free On Board".
The term is always used in conjunction with a port of loading.
Indicating "FOB port" means that the seller pays for transportation of the goods to the port of shipment, plus loading costs.
The buyer pays the cost of marine freight transport, insurance, unloading, and transportation from the arrival port to the final destination.
The passing of risks occurs when the goods are loaded on board at the port of shipment. For example, "FOB Vancouver" indicates that the seller will pay for transportation of the goods to the port of Vancouver, and the cost of loading the goods on to the cargo ship (this includes inland haulage, customs clearance, origin documentation charges, demurrage if any, origin port handling charges, in this case Vancouver).
The buyer pays for all costs beyond that point, including unloading. Responsibility for the goods is with the seller until the goods are loaded on board the ship.
Once the cargo is on board, the buyer assumes the risk.
The use of "FOB" originated in the days of sailing ships.
When the ICC first wrote their guidelines for the use of the term in 1936, the ship's rail was still relevant, as goods were often passed over the rail by hand. In 1954, in the case of Pyrene Co. Ltd. v. Scindia Steam Navigation Co. Ltd., Justice Devlin, ruling on a matter relating to liability under an FOB contract, described the situation thus:
{Only the most enthusiastic lawyer could watch with satisfaction the spectacle of liabilities shifting uneasily as the cargo sways at the end of a derrick across a notional perpendicular projecting from the ship's rail.}
In the modern era of containerization, the term "ship's rail" is somewhat archaic for trade purposes, as with a sealed shipping container there is no way of establishing when damage occurred after the container has been sealed. The standards have noted this. Incoterms 1990 stated,
{When the ship's rail serves no practical purpose, such as in the case of roll-on/roll-off or container traffic, the FCA term is more appropriate to use.}
Incoterms 2000 adopted the wording,
{If the parties do not intend to deliver the goods across the ship's rail, the FCA term should be used.}
The phrase passing the ship's rail is no longer in use, having been dropped from the FOB Incoterm in the 2010 revision.
Due to potential confusion with domestic North American usage of "FOB", it is recommended that the use of Incoterms be explicitly specified, along with the edition of the standard. For example, "FOB New York (Incoterms 2000)". Incoterms apply to both international trade and domestic trade, as of the 2010 revision.
Incoterms or International Commercial Terms are a series of pre-defined commercial terms published by the International Chamber of Commerce (ICC) relating to international commercial law.
The Incoterms® rules 2010 have become an essential part of the daily language of trade. They have been incorporated in contracts for the sale of goods worldwide and provide rules and guidance to importers, exporters, lawyers, transporters, insurers and students of international trade. Here are main features of the Incoterms® 2010 rules.
Taken from “Incoterms® 2010”, available at the ICC Bookstore
Main features of the Incoterms® 2010 rules.
1. Two new Incoterms rules – DAT and DAP – have replaced the Incoterms 2000 rules
DAF, DES, DEQ and DDU
The number of Incoterms® rules has been reduced from 13 to 11. This has been achieved by substituting two new rules that may be used irrespective of the agreed mode of transport – DAT, Delivered at Terminal, and DAP, Delivered at Place – for the Incoterms® 2000 rules DAF, DES, DEQ and DDU.
Under both new rules, delivery occurs at a named destination: in DAT, at the buyer’s disposal unloaded from the arriving vehicle (as under the former DEQ rule); in DAP, likewise at the buyer’s disposal, but ready for unloading (as under the former DAF, DES and DDU rules).
The new rules make the Incoterms® 2000 rules DES and DEQ superfluous. The named terminal in DAT may well be in a port, and DAT can therefore safely be used in cases where the Incoterms® 2000 rule DEQ once was. Likewise, the arriving “vehicle” under DAP may well be a ship and the named place of destination may well be a port: consequently, DAP can safely be used in cases where the Incoterms® 2000 rule DES once was. These new rules, like their predecessors, are “delivered”, with the seller bearing all the costs (other than those related to import clearance, where applicable) and risks involved in bringing the goods to the named place of destination.
2. Classification of the 11 Incoterms® 2010 rules
The 11 Incoterms® 2010 rules are presented in two distinct classes:
RULES FOR ANY MODE OR MODES OF TRANSPORT
EXW EX WORKS
FCA FREE CARRIER
CPT CARRIAGE PAID TO
CIP CARRIAGE AND INSURANCE PAID TO
DAT DELIVERED AT TERMINAL
DAP DELIVERED AT PLACE
DDP DELIVERED DUTY PAID
RULES FOR SEA AND INLAND WATERWAY TRANSPORT
FAS FREE ALONGSIDE SHIP
FOB FREE ON BOARD
CFR COST AND FREIGHT
CIF COST INSURANCE AND FREIGHT
The first class includes the seven Incoterms® 2010 rules that can be used irrespective of the mode of transport selected and irrespective of whether one or more than one mode of transport is employed.
EXW, FCA, CPT, CIP, DAT, DAP and DDP belong to this class. They can be used even when there is no
maritime transport at all. It is important to remember, however, that these rules can be used in cases
where a ship is used for part of the carriage.
In the second class of Incoterms® 2010 rules, the point of delivery and the place to which the goods are carried to the buyer are both ports, hence the label “sea and inland waterway” rules. FAS, FOB, CFR and CIF belong to this class. Under the last three Incoterms rules, all mention of the ship’s rail as the point of delivery has been omitted in preference for the goods being delivered when they are “on board” the vessel. This more closely reflects modern commercial reality and avoids the rather dated image of the risk swinging to and fro across an imaginary perpendicular line.
3. Rules for domestic and international trade
Incoterms® rules have traditionally been used in international sale contracts where goods pass across national borders. In various areas of the world, however, trade blocs, like the European Union, have made border formalities between different countries less significant. Consequently, the subtitle of the Incoterms® 2010 rules formally recognizes that they are available for application to both international and domestic sale contracts. As a result, the Incoterms® 2010 rules clearly state in a number of places that the obligation to comply with export/import formalities exists only where applicable.
Two developments have persuaded the ICC that a movement in this direction is timely. Firstly, traders commonly use Incoterms® rules for purely domestic sale contracts. The second reason is the greater willingness in the United States to use Incoterms® rules in domestic trade rather than the former Uniform Commercial Code shipment and delivery terms.
4. Guidance Notes
Before each Incoterms® 2010 rule you will find a Guidance Note. The Guidance Notes explain the
fundamentals of each Incoterms® rule, such as when it should be used, when risk passes, and how costs are allocated between seller and buyer. The Guidance Notes are not part of the actual Incoterms® 2010 rules, but are intended to help the user accurately and efficiently steer towards the appropriate Incoterms® rule for a particular transaction.
5. Electronic communication
Previous versions of Incoterms® rules have specified those documents that could be replaced by EDI messages. Articles A1/B1 of the Incoterms® 2010 rules, however, now give electronic means of communication the same effect as paper communication, as long as the parties so agree or where customary. This formulation facilitates the evolution of new electronic procedures throughout the lifetime of the Incoterms® 2010 rules.
6. Insurance cover
The Incoterms® 2010 rules are the first version of the Incoterms® rules since the revision of the Institute Cargo Clauses and take account of alterations made to those clauses. The Incoterms® 2010 rules place information duties relating to insurance in articles A3/B3, which deal with contracts of carriage and insurance. These provisions have been moved from the more generic articles found in articles A10/B10 of the Incoterms® 2000 rules. The language in articles A3/B3 relating to insurance has also been altered with a view to clarifying the parties’ obligations in this regard.
7. Security-related clearances and information required for such clearances
There is heightened concern nowadays about security in the movement of goods, requiring verification that the goods do not pose a threat to life or property for reasons other than their inherent nature.
Therefore, the Incoterms® 2010 rules have allocated obligations between the buyer and seller to obtain or to render assistance in obtaining security-related clearances, such as chain-of-custody information, in articles A2/B2 and A10/B10 of various Incoterms® rules.
8. Terminal handling charges
Under Incoterms® rules CPT, CIP, CFR, CIF, DAT, DAP, and DDP, the seller must make arrangements
for the carriage of the goods to the agreed destination. While the freight is paid by the seller, it is actually paid for by the buyer as freight costs are normally included by the seller in the total selling price. The carriage costs will sometimes include the costs of handling and moving the goods within port or container terminal facilities and the carrier or terminal operator may well charge these costs to the buyer who receives the goods. In these circumstances, the buyer will want to avoid paying for the same service twice: once to the seller as part of the total selling price and once independently to the carrier or the terminal operator. The Incoterms® 2010 rules seek to avoid this happening by clearly allocating such costs in articles A6/B6 of the relevant Incoterms rules.
9. String sales
In the sale of commodities, as opposed to the sale of manufactured goods, cargo is frequently sold
several times during transit “down a string”. When this happens, a seller in the middle of the string does not “ship” the goods because these have already been shipped by the first seller in the string. The seller in the middle of the string therefore performs its obligations towards its buyer not by shipping the goods, but by “procuring” goods that have been shipped. For clarification purposes, Incoterms® 2010 rules include the obligation to “procure goods shipped” as an alternative to the obligation to ship goods in the relevant Incoterms rules.
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