국제재판관할에 관한 국제사법 개정 - 전체 개관

Abstract

The work introducing the detailed rules of international adjudicatory jurisdiction (“jurisdictional rules”) by amending the 2001 Private International Law Act of Korea (“Former PILA”) finally came to fruition; the Private International Law Amendment Act was promulgated on January 4, 2022, and the amended Private International Law Act of Korea (“New PILA”) entered into force on July 5, 2022. The Former PILA had only three articles on jurisdictional rules, i.e., Article 2 (declaring the general principles of international jurisdiction) and Articles 27 and 28 (establishing the protective jurisdictional rules to protect consumers and employees, the socio-economically weaker parties). There are now thirty-six articles on jurisdictional rules. The general part is set forth in Chapter 1, Section 2 of the New PILA, and special parts are set forth for various legal relations in the first section of each chapter of the New PILA, most of which are rules on special jurisdiction. As its general part, the New PILA includes general principles of international jurisdiction and jurisdictional rules on general jurisdiction, place of office (business office) and business activities, location of property, related cases and counterclaims, jurisdiction agreements, jurisdiction based upon appearance, exclusive jurisdiction, lis pendens, non-exercise of international jurisdiction, exclusion of application, jurisdiction on preservation orders and non-contentious matters. As its special parts, each chapter of the New PILA includes jurisdictional rules on persons (Chapter 2), intellectual property rights (Chapter 5), claims (Chapter 6), family matters (Chapter 7), inheritance (Chapter 8), bills of exchange, promissory notes and checks (Chapter 9) and maritime commerce (Chapter 10).
 By stipulating, for the first time in Korea’s history, the jurisdictional rules in the New PILA, the international jurisdiction law of Korea entered a new era. On the one hand, the New PILA secures legal certainty and enhances predictability of the courts and the parties by specifying the detailed jurisdictional rules. On the other hand, jurisdictional justice is guaranteed in individual cases through the principle of lis pendens and non-exercise of international jurisdiction under exceptional circumstances (the latter is an improvement of the special circumstances theory of the Supreme Court precedents and was influenced by the doctrine of forum non conveniens of the common law jurisdicitons) by giving certain limited discretion to the courts. If the New PILA is to be successful, the Korean courts must correctly understand the gist of the jurisdictional rules of the New PILA and use their discretion appropriately in order to achieve the purpose of the New PILA. The author looks forward to a collection of excellent Korean courts precedents faithful to the New PILA in the future. The structure of the New PILA is noteworthy in that the jurisdictional rules and the choice of law rules, in each chapter, stand side by side like two wings, while putting the detailed detailed jurisdictional rules in the New PILA. Korea’s transition to a two-wing system, from the Former PILA which, like Germany, only contained choice of law rules, is noteworthy not only from the Korean point of view, but also from a comparative private international law perspective. An important reason for the transition is that the jurisdictional rules and the choice of law rules are closely related, and the decision to transit was influenced by the attitudes of the common law jurisdicitons, the Swiss Private International Law Act, and the Hague Conference on Private International Law, all of which have a broad understanding of private international law not limited to choice of law rules.