Review of the Rules on Korean Courts’ International Jurisdiction over a Civil Case

서지정보

· 발행기관 : 동아대학교 법학연구소
· 수록지 정보 : 동아법학 / 65호 / 39 ~ 67페이지
· 저자명 : 김용의

초록

The general rules upon which Korean courts decide to exercise the jurisdiction over a civil case lie in Korean Civil Procedure Act. A principle which is a core of the rules is the “Land-Governing Principle.” On other words, the domicile or the residence of the party (especially the defendant) to the case has been the most important factor in deciding the court’s jurisdiction. The history of Korean courts’ international jurisdiction over a civil case is not so long. Until 2001, there was no statutory provision in Korea on the international jurisdiction over a case related to the property rights. Civil cases with the foreign elements started from the family law related disputes and, in 1972, the first Supreme Court (the “Court”) decision on the international jurisdiction came out from a civil case related to property rights. However, even up to now, there are not so many Court cases dealing with the international jurisdiction. As international business transactions increase in Korea, the number of cases also increased. Now, about 100 civil cases where international jurisdiction was at issue were decided by multiple levels of the courts in Korea.
Together with the fact that the history of international jurisdiction is short and there are not sufficient number of cases, the statutes to govern the requirements and standards for the courts’ exercise of the international jurisdiction are not yet well settled or provide clear and detail descriptions thereof. In addition, it seems that well established directives of the cases regarding the requirements and standards are also lacking. Until 2001, without any statutory provision or reliable international treaty, the Court had set forth such standard for the international jurisdiction as is called the “Sound Reasoning Test.” Later the Court applied, mutatis mutandis, the ‘Land-Governing Principle” which is the governing principle on the jurisdiction over the domestic civil cases. Up to quite recent days, majority of the Court cases have applied the so-called “Modified Land-Governing Principle” to decide the international jurisdiction. Though the article 1 and 2 of the Private International Act effective since 2001 provide for the international jurisdiction as statutory rules for the first time, they seem to have made an abstract declaration rather than being specific rules or standards thereon by stating in sum that “the court shall follow reasonable principles compatible to the ideology of the allocation of international jurisdiction in judging the existence of the substantive relations and the court should judge whether or not it has the international jurisdiction considering the jurisdictional provisions of domestic laws and it shall take a full consideration of the unique nature of international jurisdiction in light of the purpose of setting forth the principle and governing law on the international jurisdiction over the legal relationship with foreign elements.”So far the lower courts seemed to acknowledge more expansive scope of international jurisdiction in interpretation and application of the PIL provisions than the one generally accepted internationally. In addition, the standards for their decision were diversified and not consistent rather than being settled in unified direction. It seems that the main trend of the courts is to maintain the existing Modified Land-Governing Principle or even to further strengthen the same principle through their decisions even after the establishment of the PIL.
This article views that Korean courts, lawmakers, law practitioners, and scholars should make variety of efforts for the courts to exercise international jurisdiction based on the consistent and unified standards. In addition, this article suggests that Korean courts refer to the elements of the minimum contact theory and the key facts constituting the elements of the theory established by the US courts. For there are 50 states with their own constitutions and judicial branches and the courts of each state have accumulated sufficient experience in deciding interstate jurisdiction cases for long time.
The purpose of this article is to arrange the current problems in a way of illustration for Korean courts to exercise the international jurisdiction over a civil case according to the rules compatible to the internationally accepted rules and to properly interpret and apply the article 2 of PIL. Thereby it aims to contribute to enhancing the predictability and legal stability not only domestically but internationally and achieving the status of internationally recognized and reliable forum in the world. Especially, This article is written in English to be of good reference for not only Korean scholars and practitioners but the foreign scholars and practitioners with good interest in Korea citing and reviewing as many foreign cases and theories as possible in comparative way of study.

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