외국인 부부의 이혼사건에서 이혼․ 재산분할의 국제재판관할과 준거법

Abstract

With regard to the issue of international jurisdiction to adjudicate, the judgment in question (“Judgment”) of the Supreme Court of Korea (“KSC”) deserves high appreciation as the first KSC judgment making it clear that Article 2 of the Private International Law Act of Korea (“KPILA”) also applies to family law matters, and identifying the practical criteria for substantial connection in divorce cases. The author, who has long criticized that the KSC failed to provide the relevant criteria for international juris- diction to adjudicate in family law matters, welcomes the Judgment. However, it is unfortunate that the KSC has done this only after the draft amendment to the KPILA (“Draft Amendment”) that introduced the detailed inter- national jurisdiction rules was published in 2020, which is currently pending before the National Assembly. Specifically, the KSC in this case appears to have considered that the defendant’s domicile was not located in Korea at the time of the filing. Assuming that the KSC indeed held that the defendant’s domicile did not exist in Korea, it should have exposed the relevant criteria for acknowledging the existence of the defendant’s domicile in Korea. Although the Judgment is therefore not entirely clear, the author under- stands that it drew its conclusion to acknowledge the jurisdiction of Korea on the basis of the substantial connection under Article 2 of the KPILA rather than any specific venue provisions of the Family Procedure Act, and under such premise, the conclusion of this case seems justified. However, the fundamental solution would be to introduce detailed international jurisdiction rules for each type of family law matters by legislation, like the Draft Amendment. Turning to the governing law, the Court of Appeal and the KSC were correct in that they applied Canadian law and Quebec law to divorce and partition of patrimony respectively. Nonetheless, it is regrettable that they did not give any consideration to the hidden renvoi, whereby Korean courts should apply Korean law by way of renvoi hidden in the respective international jurisdiction rules of Canada and Quebec. Although in this case, the hidden renvoi is not allowed ultimately because Korea does not have international jurisdiction to adjudicate under the international jurisdiction rules of Canada and Quebec respectively, the fact that such conclusion is correct does not justify the lack in the courts’ private international law reasoning. In addition, it is necessary to examine the relationship between the law applicable to the partition of patrimony as a result of divorce which is a peculiarity of the Korean Civil Code, as well as the law applicable to the matrimonial property regime. In this article, the concrete order of discussion is as follows: establish- ment of international jurisdiction rules in divorce cases (Chapter II), implications of the Judgment in relation to international jurisdiction in divorce cases (Chapter III), resolution of this case according to the Draft Amendment of 2020 to the KPILA (Chapter Ⅳ) and applicable law to divorce and partition of patrimony following divorce (Chapter Ⅴ).