외국판결의 승인에서의 공서 위반 심사의 대상

Abstract

In Supreme Court Judgment 2009Da22549 Decided May 24, 2012, the Supreme Court of Korea rendered the first-ever ruling that explicitly stated the subject matter for examination of Public Policy Exception rule in the recognition of a foreign judgment, the reference period for examination of the requirements, and the general examination criteria. In the subject case, the Supreme Court: (a) held that the judgment rendered by a Japanese court, i.e., dismissal of claims seeking compensation for damages and payment of outstanding wages by Koreans who were subjected to forced labor during the Japanese occupation, could not be recognized under the Korean legal order; and (b) declared that “not only the text of a foreign judgment but also the rationale of the decision (ratio decidendi) and the consequences arising from the recognition of such foreign judgment” ought to be examined when determining whether to recognize a foreign judgment. Nevertheless, it remains unclear as to which specific part of the ratio decidendi of a foreign judgment shall be examined. “Public policy,” which is a criterion for the recognition of a foreign judgment that conflict with the principle of prohibition of a review of a foreign decision on the merits of the case (révision au fond), is a term encompassing both “substantive” and “procedural” aspects, and is considered as the minimum intervention required to preserve a sovereign country’s fundamental values, such as social integration and legal order. Taking account of the purpose and substance of the requirements for applying the public policy exception rule, the concept of res judicata under each country’s law may be somewhat weakened. Therefore, the “consequence of recognition of a foreign judgment,” which constitute subject matter of public policy examination, supra, shall not be limited to the “consequence of recognizing the res judicata of a foreign judgment” but rather be construed to encompass the “overall and indirect impact of recognition on a nation’s legal order.” The scope of res judicata is a minimum requirement but the general examination criteria is not confined to that scope. Thus, the scope of ratio decidendi may be deemed to encompass the “determination of matters necessary for the conclusion of judgment,” rather than being limited to the “determination of matters that had a direct affection on the text of a decision.” If a Korean court were to deny the recognition of a foreign judgment by applying the public policy exception rule on the part that did not directly affect the text of a decision, it may go against judicial economy and cause outcomes unfavorable to a party who won a suit. Nonetheless, if there exists grounds for applying such public policy exception rule to the effect that is absolutely intolerable under Korean legal order, a Korean court may have sufficient reason to deny the recognition of a foreign judgment. In the subject case, given that it is unclear as to which specific part of the ratio decidendi of the Japanese court’s judgment was deemed by the Supreme Court of Korea as the subject matter for examination to determine the applicability of the public policy exception rule, it is difficult to readily conclude which of the scope, as seen supra, the Supreme Court adopted. Going forward, a wide array of case studies need to be accumulated so as to establish a more accurate and clear criteria on the subject matter for examination of Public Policy Exception rule in the recognition of a foreign judgment.