국제재판관할에 관한 최근 대법원판결의 분석 - 실질적 관련 원칙과 국제사법 제2조의 해석론을 중심으로 -

Abstract

The international jurisdiction provision was newly established due to the whole amendment of the Private International Act of ten years ago. Since then, Supreme Court decisions and lower court decisions have been rendered on international jurisdiction issues. Especially related to the substantial connection principle in Article 2 of the Private International Act, the elements of Article 2 of the Private International Act were analyzed. Further, Supreme Court Decisions were also analyzed pursuant to characteristics of legal relation on the framework of relationship among the elements. Current Supreme Court Decisions were in the middle of establishment. I agree with criticism against comprehensive determination in some Supreme Court Decisions where various circumstances are considered based on the abstract test of substantial connection without rigorous logic. Major reason for the above might be that there has been no thought on the establishment of mutual relationship among elements in Article 2 of the Private International Act. This paper analyzes Article 2 of the Private International Act. First, in applying Article 2 of the Private International Act, concept of substantial connection was used both in the narrow meaning of concrete connection points and in the wide meaning of determining whether the exercise of international jurisdiction by the courts of the Republic of Korea is justified. Secondly, in determining substantial connection in the wide meaning, an element of substantial connection in the narrow meaning, an element of ideology of international jurisdiction distribution, and an element of domestic jurisdiction consideration are used as sub concept. However, depending on cases, various connection points constituting substantial connection in the narrow meaning also have duplicate functions as they also constitute element in ideology of international jurisdiction distribution. Thirdly, the concept of special characteristic of international jurisdiction functions as a passive element which could negate substantial connection in the wide meaning under consideration of special characteristic like in the above despite existence of a territorial jurisdiction provision in the domestic law. Lastly, elements constituting the above sub concept are necessary conditions for establishment of substantial connection in the wide meaning. But they are not sufficient conditions. More detailed international jurisdiction rules should be established in the specific cases through Supreme Court Decisions in compliance with Article 2 of the Private International Act. Under the premise that Article 2 of the Private International Act is abstract and transitional law, the time has come to review more specific legislation. Abstract rules have advantage of enabling justifiable conclusion in specific case, but on the other hand, they undermine foreseeability on the part of litigation parties. It is necessary to refer to the amended Civil Procedure Act of Japan as to international jurisdiction which provides individual and specific jurisdictional grounds depending on the types of the litigation parties and claims.