개정 국제사법에 관한 비교법적 고찰- 혼인관계사건의 국제재판관할을 중심으로 -

Abstract

This paper presents a review of international jurisdiction regarding marriage-related cases arising from the revision of the Act on Private International Law that was recently passed (December, 9. 2021) by the National Assembly. As international exchanges have increased, disputes with foreign entities have also become increasingly important. Previous cases involving international jurisdiction were settled through precedents and ultimately a revision of the Act Private International Law was drafted in 2018. The issue of international jurisdiction has a long history extending back to the ancient Near East. Problems with international jurisdiction in Europe have frequently arisen because Europe has many geographically adjacent countries. This article also reviews legal precedents. Although there have been legal cases regarding international judicial jurisdiction, the need for legislation still arises. The revised Private International Law statute is intended to legislatively resolve this need in consideration of such necessity. Furthermore, this paper compares and discusses the EU’s Brussels II bis, a model for international jurisdiction in Europe, Germany’s Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction, Japan's recently enacted Personal Status Litigation Act, and Korea’s revision of the Act on Private International Law. The statutory revision seeks to diverge from the former statute, which had only a clause declaring the principle of substantive relevance to international jurisdiction, and undertakes to clarify international jurisdiction by stipulating specific international jurisdiction in statutory form. In so doing, the statutory revision is expected to enhance predictability for the relevant parties and thereby contribute to legal stability. In particular, Korean marriage-related regulations apparently both consider the reality of frequent international marriages and disputes and strive to reflect international trends through comparison with foreign legal systems. Since the issue of international jurisdiction has both domestic and international aspects, reconciling both is necessary. As domestic affairs such as marriage have greater influence on a person's status and overall life than property-related matters, international jurisdiction should be established in due consideration of this reality. The issue of international jurisdiction also affects relations with foreign laws. Therefore, Korean legislation and jurists must undertake continuous and extensive research on various foreign systems, including those of neighboring countries.