한중 사법공조의 실천현황과 개선방안

Abstract

In this article the international judicial assistance or cooperation in civil matters refersto the judicial assistance or cooperation in respect of ① service of documents, ② takingof evidence, ③ provision of legal information and ④ recognition and enforcement offoreign judgments in civil matters. Korea became a member of the Hague Conferenceon Private International Law in August 1997 and acceded to the “Convention on theService Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”(“Service Convention”) in 2000. In addition, Korea has entered into a bilateral treaty oninternational judicial assistance with Australia and China, respectively. In addition, in2010 Korea has acceded to the “Convention on the Taking of Evidence Abroad in Civilor Commercial Matters” (“Evidence Convention”), thereby establishing a legal basis forthe most important judicial assistance in its narrow sense, namely, service of documentsand taking of evidence. In this article the author discusses the current status ofinternational judicial assistance in civil matters between Korea and China and the waysof future improvement. Judicial assistance for evidence taking is rarely used in practicewhile judicial assistance for service of process is widely used under the Korea-ChinaBilateral Treaty (“KC Treaty”) and the Service Convention. However, there is a recentcase where a Chinese court has accepted a request from a Korean court for evidencetaking in China and other small number of cases for evidence taking. Although the KCTreaty covers provision of legal information, it does not appear to be used in practice. There are some rooms for future improvement in respect of service of documents andtaking of evidence. Concerning the service of documents, Korea and China which werealready parties to the Service Convention at the time of the conclusion of the bilateraltreaty should have permitted in the KC Treaty the more convenient method of servicethey did not adopt when each of them had acceded to the Service Convention, but didnot do so. Turning to the recognition and enforcement of foreign judgments, the conditionsfor the recognition and enforcement of foreign judgments in China are not precise, whilethose for the recognition and enforcement of foreign judgments in Korea are muchclearer. However, it is evident that both Korean and Chinese laws require the existenceof a reciprocity so far as property cases are concerned. Comparison of the relevantprovisions of the Civil Procedure Act of both countries appears to show that there existsa reciprocity between the two countries. Turning to the court precedents, a judgment ofthe Seoul District Court of November 5, 1999 recognized a Chinese judgment in a letterof credit case and held that there was a reciprocity between Korea and China. Basedupon that judgment, Korean experts had expected that Chinese courts would similarlyrecognize a Korean judgment. However, a Chinese court in Shenzhen, GuangdongProvince refused to recognize and enforce a Korean judgment based upon the rationalethat there was no reciprocity between Korea and China. Therefore, for now it is difficultfor Korean experts to expect Korean courts to recognize and enforce a Chinese judgment. One way of ensuring the recognition and enforcement of foreign judgments betweenKorea and China would be to amend the KC Treaty. However, it would not be easy todo so for the time being. This is because at present Koreans do not have sufficientknowledge of the Civil Procedure Act of China. Probably Chinese people also do nothave sufficient knowledge of the Civil Procedure Act of Korea.