외국재판의 승인 및 집행요건으로서 민사소송법 제217조 제1항 제2호에서 정한 ‘적법한 송달’의 의미 －대법원 2021. 12. 23. 선고 2017다257746 전원합의체 판결을 중심으로－

Abstract

In principle, a judgment rendered in a foreign country is effective only within the country, thus whether to recognize or enforce the judgment must be in accordance with the laws of the recognizing and enforcing country. In this regard, Article 217① of the Civil Procedure Act of the Republic of Korea provides four requirements: (1) Jurisdiction, (2) Service (excluding service by public notice and similar types of service), (3) public policy, and (4) reciprocity, and the judgment studied in this paper, 2017-Da-257746 Judgment(hereinafter ‘the Judgment’), deals with the Service. The Judgment concluded that service to a person who has a certain personal relationship with the recipient (hereinafter ‘substituted service ⓐ’) is legitimate service as a requirement for recognition and enforcement. It held that substituted service ⓐ is not similar to ‘service by public notice,’ and repealed all existing precedents that took a different position. The Judgment is meaningful, legally valid, and consistent with the practice of Cross-Border Transactions, in which service abroad is frequently performed. However, the Judgment does not clearly distinguish the two positions the Republic of Korea has in this case, which are the service-implementing country and recognizing/enforcing country, respectively. Meanwhile, although not directly stated in the Judgment, service deemed to be served to the recipient upon shipment (hereinafter ‘substituted service ⓑ’) should be treated the same as ‘substituted service ⓐ’ since it significantly violates the defendant’s right to defend and is similar to service by public notice. Also, it should be noted that direct service by a foreign court without diplomatic channels to domestic residents except for its own citizens is inappropriate. This is in line with the Supreme Court’s 92-Da-2585 Judgment that limited the scope of consular service to its citizens for the same purpose, which was not repealed by the Judgment. Furthermore, it is desirable to make a reply stating that service is not possible in situations where there is no choice but to serve by public notice or similar service such as ‘substituted service ⓑ.’ Otherwise, facing an embarrassing situation might happen where an application for recognition and enforcement is applied after serving by public notice duly under the domestic law. Attention should also be paid to electronic service, currently being considered in the EU, U.K and U.S., since there will be a revolution for the current service system based on physical service. Lastly, it is also necessary to somewhat ease the existing strict service system and widely utilize service by public notice or publication in insolvency matters because collective debt processing procedures require efficient and effective proceedings. In the past, it was not easy to properly handle service abroad unless it was a service at the place where they met by chance, but the overseas service system had developed a lot since then. In a modern society where foreign creditors and overseas assets become commonplace, I look forward to the establishment of service system that can more effectively protect the rights of the parties harmoniously.