한국의 국제재판관할규칙의 입법에 관하여

Abstract

In this article, the author deals with the issue of how to introduce detailed rules on international adjudicatory jurisdiction in the Private International Law Act (PILA) of Korea. More concretely, the guidelines for the rules on international adjudicatory jurisdiction (Chapter Ⅱ), the structure of the rules on international adjudicatory jurisdiction (Chapter Ⅲ) and the concrete contents of the rules on international adjudicatory jurisdiction (Chapter Ⅳ) are discussed in detail. In this regard, reference is also made to the relevant provisions of the recently amended Civil Procedure Act and the Civil Provisional Remedies Act of Japan which have taken effect on April 1, 2012. Unlike Japan which has introduced those provisions in the Civil Procedure Act and the Civil Provisional Remedies Act, in Korea detailed rules on international adjudicatory jurisdiction will be inserted in the PILA of Korea. The most important issues of legislation are the concrete contents of the rules on international adjudicatory jurisdiction. There may be disputes as to whether it is the right time to introduce by legislation the rules on international adjudicatory jurisdiction. But this article is based upon the assumption that the time for such legislation has come. The author suggests introducing “the complete rules on international adjudicatory jurisdiction” and “the incomplete rules on international adjudicatory jurisdiction” in the PILA of Korea. The rules on international adjudicatory jurisdiction which are widely accepted in various countries and therefore regarded as “the complete rules on international adjudicatory jurisdiction” could be inserted in the PIL Act without hesitation. When Korea's jurisdiction is based upon “the complete rules on international adjudicatory jurisdiction”, Korea will have international adjudicatory jurisdiction without difficulty. On the other hand some rules on international adjudicatory jurisdiction that are not so widely accepted and therefore regarded as “the incomplete rules on international adjudicatory jurisdiction” could also be inserted in the PIL Act. However, when Korea's jurisdiction is based upon “the incomplete rules on international adjudicatory jurisdiction”, Korea could have international adjudicatory jurisdiction only if Korean judges find that Korea's assertion of jurisdiction in a concrete case is consistent with the general principles of allocation of international adjudicatory jurisdiction set forth in Article 2 of the current PIL Act. The examples of such incomplete rules on international adjudicatory jurisdiction are rules on jurisdiction based upon activities of the defendant, jurisdiction for multiple defendants, jurisdiction for multiple claims,jurisdiction for contracts (other than sales contract and contract for provision of services). However, the scope of the incomplete rules on international adjudicatory jurisdiction should be limited as much as possible.