국제사법 전부개정법률안의 검토– 가사사건의 국제재판관할을 중심으로 – (Review of a Legislative Bill for the General Revision of Private International Law -With a focus on international jurisdiction in domestic cases-)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 22권 / 2호 / 135 ~ 187페이지
· 저자명 : 김원태

초록

This paper presents a brief review of a legislative bill for the general revision of private international law with a focus on the international jurisdiction of domestic cases.
The general jurisdiction regulations are applied to domestic cases, as well, in principle, regardless of litigious and non-litigious ones. Since strong public interest is found in domestic cases, their international jurisdiction should be determined from the perspective of which court will be proper to try such cases internationally. It is true that private international law aims to set international jurisdictions and applicable law in legal relations with foreign elements, but the criteria to decide an international jurisdiction should be fundamentally reviewed from the perspective of procedural law rather than substantial law.
Domestic cases widely vary in nature, which makes it difficult to define the criteria of international jurisdiction in domestic cases in a single word.
It is needed to review them in each domestic case. Given that the interest of jurisdiction may vary among domestic cases, there is a need to divide domestic cases into marriage relation cases, parent-child relation cases, guardianship cases, support cases, and inheritance cases to install new regulations about international jurisdiction.
The revised bill includes provisions only for cases under Article 7(Relatives), Section 1 related to the international jurisdiction of family mediation and no substantive enactments for cases under Article 8(Inheritance), Section 1, which raises a need for re-review.
Marriage relation cases are so diverse that the scope of their application can be a problem, which suggests that it might be right to restrict the scope to the annulment or cancellation of marriage, annulment or cancellation of divorce, judicial divorce cases, and marital property system. The revised bill stipulates that when either the child or the defendant parent is a South Korean national in cases about the formation or resolution of biological parent-child relations, the court shall have international jurisdiction(the latter part of Article 58 of Revised Bill). When nationality is taken as a cause of jurisdiction, however, it can raise problems with regard to the easiness of evidence collection and accuracy of fact finding. The revised bill has cases about the annulment of adoption omitted and should include it.
Article 61, Clause 3 of the Revised Bill recognizes defense jurisdiction in support cases despite the permission of agreement over international jurisdiction, and the study proposes to eliminate it. The study also proposes to eliminate Article 62, Clause 1, No. 2 of the Revised Bill that recognizes nationality jurisdiction in guardianship cases and Article 77, Clause 3 of the Revised Bill that recognizes defense jurisdiction in inheritance cases.

영어초록

This paper presents a brief review of a legislative bill for the general revision of private international law with a focus on the international jurisdiction of domestic cases.
The general jurisdiction regulations are applied to domestic cases, as well, in principle, regardless of litigious and non-litigious ones. Since strong public interest is found in domestic cases, their international jurisdiction should be determined from the perspective of which court will be proper to try such cases internationally. It is true that private international law aims to set international jurisdictions and applicable law in legal relations with foreign elements, but the criteria to decide an international jurisdiction should be fundamentally reviewed from the perspective of procedural law rather than substantial law.
Domestic cases widely vary in nature, which makes it difficult to define the criteria of international jurisdiction in domestic cases in a single word.
It is needed to review them in each domestic case. Given that the interest of jurisdiction may vary among domestic cases, there is a need to divide domestic cases into marriage relation cases, parent-child relation cases, guardianship cases, support cases, and inheritance cases to install new regulations about international jurisdiction.
The revised bill includes provisions only for cases under Article 7(Relatives), Section 1 related to the international jurisdiction of family mediation and no substantive enactments for cases under Article 8(Inheritance), Section 1, which raises a need for re-review.
Marriage relation cases are so diverse that the scope of their application can be a problem, which suggests that it might be right to restrict the scope to the annulment or cancellation of marriage, annulment or cancellation of divorce, judicial divorce cases, and marital property system. The revised bill stipulates that when either the child or the defendant parent is a South Korean national in cases about the formation or resolution of biological parent-child relations, the court shall have international jurisdiction(the latter part of Article 58 of Revised Bill). When nationality is taken as a cause of jurisdiction, however, it can raise problems with regard to the easiness of evidence collection and accuracy of fact finding. The revised bill has cases about the annulment of adoption omitted and should include it.
Article 61, Clause 3 of the Revised Bill recognizes defense jurisdiction in support cases despite the permission of agreement over international jurisdiction, and the study proposes to eliminate it. The study also proposes to eliminate Article 62, Clause 1, No. 2 of the Revised Bill that recognizes nationality jurisdiction in guardianship cases and Article 77, Clause 3 of the Revised Bill that recognizes defense jurisdiction in inheritance cases.

참고자료

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