국제사법 전부개정안 검토– 물권, 계약에 관한 소의 국제재판관할을 중심으로 (A Review on Proposed Amendments of Private International Act of Korea – with Focus on the International Jurisdiction of Proceedings Concerning Rights in Rem and a Contract)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 22권 / 2호 / 91 ~ 133페이지
· 저자명 : 한애라

초록

Article 2 of the Private International Law Act of Korea 2002 (“KPILA”) provides that the international jurisdiction shall be determined by the standard of ‘substantial relations’ with the party or the action. It has been discussed that article 2 of the KPILA is too broad and general, and the predictability of the international jurisdiction should be raised by implementing more specific and clearer international jurisdiction clauses. The Ministry of Justice of Korea prepared a draft amendment of KPILA (“Draft”, prior legislative notice on January 19, 2018), where more detailed jurisdictional rules are introduced.
Among those rules, this article focuses on the international jurisdiction on proceedings concerning rights in rem and concerning a contract.
First, Article 33 on in rem jurisdiction merely recites Article 5 and Article 10 ① (3) of the Draft, and therefore, unnecessary.
Secondly, Article 10 ① (3) of the Draft provides that the court of Korea shall have exclusive international jurisdiction on proceedings which have as their object rights in rem in immovable property or registered tenancies of immovable property. However, article 20 of the Civil Procedure Act of Korea provides that a lawsuit concerning immovable property may be brought to the court in the place where such property is located, thus bestowing additional special jurisdiction on such court while not excluding other courts.
It should be further discussed whether jurisdiction on rights in rem should be exclusive or special (additional), and which approach would protect rights in rem and parties’ procedural rights better.
Regarding special jurisdiction on proceedings concerning a contract, the Article 42 of the Draft adopts a compromising position generally following Article 5 (1) of the Brussels I regulation. It provides that in the cases concerning the sale of goods and the provision of services, the place of specific performance will be the jurisdictional connecting factor, and for cases other than the above two types of cases, the court of place where the obligation has been performed or the place of performance agreed upon by parties will have jurisdiction. Under the current situation where no global consensus has been established on the international jurisdiction of contract cases, this approach gives predictability at least in a limited extent and will reduce confusion on the contractual jurisdiction. Still, it is a drastic change from the established jurisdictional rule under the Civil Procedure Act, and therefore further discussion is needed to clarify the meaning and extent of the new rule.
Finally, Article 43 and Article 44 of the Draft are on the jurisdiction of consumer contract and labor contract cases. Both articles had been already introduced in KPILA 2002 as Article 26 and Article 27, and basically similar with that of Brussels I regulation.

영어초록

Article 2 of the Private International Law Act of Korea 2002 (“KPILA”) provides that the international jurisdiction shall be determined by the standard of ‘substantial relations’ with the party or the action. It has been discussed that article 2 of the KPILA is too broad and general, and the predictability of the international jurisdiction should be raised by implementing more specific and clearer international jurisdiction clauses. The Ministry of Justice of Korea prepared a draft amendment of KPILA (“Draft”, prior legislative notice on January 19, 2018), where more detailed jurisdictional rules are introduced.
Among those rules, this article focuses on the international jurisdiction on proceedings concerning rights in rem and concerning a contract.
First, Article 33 on in rem jurisdiction merely recites Article 5 and Article 10 ① (3) of the Draft, and therefore, unnecessary.
Secondly, Article 10 ① (3) of the Draft provides that the court of Korea shall have exclusive international jurisdiction on proceedings which have as their object rights in rem in immovable property or registered tenancies of immovable property. However, article 20 of the Civil Procedure Act of Korea provides that a lawsuit concerning immovable property may be brought to the court in the place where such property is located, thus bestowing additional special jurisdiction on such court while not excluding other courts.
It should be further discussed whether jurisdiction on rights in rem should be exclusive or special (additional), and which approach would protect rights in rem and parties’ procedural rights better.
Regarding special jurisdiction on proceedings concerning a contract, the Article 42 of the Draft adopts a compromising position generally following Article 5 (1) of the Brussels I regulation. It provides that in the cases concerning the sale of goods and the provision of services, the place of specific performance will be the jurisdictional connecting factor, and for cases other than the above two types of cases, the court of place where the obligation has been performed or the place of performance agreed upon by parties will have jurisdiction. Under the current situation where no global consensus has been established on the international jurisdiction of contract cases, this approach gives predictability at least in a limited extent and will reduce confusion on the contractual jurisdiction. Still, it is a drastic change from the established jurisdictional rule under the Civil Procedure Act, and therefore further discussion is needed to clarify the meaning and extent of the new rule.
Finally, Article 43 and Article 44 of the Draft are on the jurisdiction of consumer contract and labor contract cases. Both articles had been already introduced in KPILA 2002 as Article 26 and Article 27, and basically similar with that of Brussels I regulation.

참고자료

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