2018년 국제사법 전부개정법률안에 따른 해사사건의 국제재판관할규칙

Abstract

In order to introduce detailed rules on international jurisdiction to adjudicate, the Ministry of Justice of Korea (“KMOJ”) had established in June of 2014 a committee (Committee) in charge of amending the Private International Law Act of Korea (“KPILA”), and the Committee made efforts to prepare a draft of amended KPILA. Unfortunately, however, the Committee could not accomplish its mission of preparing a draft. Afterwards the KMOJ prepared a draft of the amended KPILA (“Draft”) and made a prior legislative notice to the public on January 19, 2018. This article gives an overview of the rules on international jurisdiction in general and discusses in detail the rules on maritime matters. The recent effort to amend the KPILA is a task that has been postponed as a future task during the last process of amending the old KPILA pursued in 1999. The Draft aims to enhance legal certainty by introducing detailed rules on international jurisdiction on the one hand, and to ensure fair results in individual cases at the same time by allowing the courts to exercise discretion by way of the doctrine of forum non conveniens on the other hand. Regarding maritime matters, the Draft will have a significant impact on international maritime cases, since the special jurisdiction based on the presence of property is still allowed subject to certain limitations (Article 5), the special jurisdiction based on arrest of ship has been expressly introduced (Article 91), and other provisions setting forth rules on international jurisdiction in addition to those jurisdictions have been newly established. It should be noted that in discussing the rules on international jurisdiction in maritime matters, one must take into consideration the rules on international jurisdiction (mainly rules on special jurisdiction) in other chapters including Chapter 6 (obligations), and the rules set forth in Chapter 1 (general provisions), as well as Chapter 10 on the maritime matters. In the case of maritime matters, it is desirable to join the relevant international treaties as much as possible in order to enhance the international consistency of the rules on international jurisdiction, and this is especially true in the area of maritime law. The “internationality” which is one of the generally accepted characteristics of the maritime law should be fully considered in the context of the rules on international jurisdiction. In this article, the author discusses the issues in the following order: first, the necessity of legislation on international jurisdiction, and the direction of such legislation and its structure (Chapter Ⅱ)；second, the general principles on international jurisdiction (Chapter Ⅲ)；third, the general jurisdiction (Chapter Ⅳ)；fourth, the special jurisdiction in maritime litigation cases (Chapter Ⅴ)；fifth, the actions on rights in rem related to ship (Chapter Ⅵ)；sixth, the actions on contractual as well as non-contractual obligations (Chapter Ⅶ)；seventh, the international jurisdiction in maritime litigation cases based on Chapter 1 of the Draft (general provisions) (Chapter Ⅷ)；eighth, the international jurisdiction in preservation measures (Draft, Article 14) (Chapter Ⅸ)；ninth, the international jurisdiction in maritime non-contentious matters (Chapter Ⅹ)；and tenth, other related issues: the introduction of rules on international jurisdiction as a prerequisite to make Korea a hub of international maritime disputes (Chapter XI).