이메일에 의한 국제송달의 도입방안

Abstract

In international litigation, the time length required for the service of judicial documents is ordinarily much longer than that of domestic litigation. So it is necessary to significantly shorten the service period by utilizing international service mechanism using electronic means in order to expedite the litigation. In addition, in the cross-border cases where the defendant’s domicile is unknown despite the e-mail address is identifiable, we need to explore some available and affordable service methods to ensure that the lawsuit would proceed smoothly and that the recognition and enforcement of the relevant judgment would not be refused in the subsequent phase by serving the judicial documents through e-mail account. The international e-service of judicial documents has currently been recognized in “Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast)” as well as common law countries such as the United States, the United Kingdom, Australia and Canada. However, Korea does not explicitly allow international e-service of judicial documents. The reason for the difficulty to implement international e-service in the court’s practice in Korea is that there exist no explicit regulations on international service using electronic means under the bilateral treaties on judicial assistance concluded by Korea, or the Civil Procedure Act and the Act on International Judicial Mutual Assistance in Civil Matters. And further reason could be found in that Korea made a declaration pursuant to Article 10 of the “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter “HCCH Service Convention”)” at the time of its accession. The purpose of this study is to present a concrete introduction scheme for international service by e-mail of judicial documents in civil and commercial cases. First of all, in reviewing the institutional/technical introduction plan for international service by e-mail, this study has scrutinized the necessity of developing an e-mail service that maintains security in terms of guaranteeing the right of defense of the person to be served is examined. Based on this research, some implications were drawn that the e-mail system which Korea will develop for international e-service should have the functions as follows: (ⅰ) function to encrypt the contents of electronic service and block/dissolute the account when exposed to the risk of hacking by a third party, (ⅱ) function of user identity confirmation, (ⅲ) functions of transmission and reception confirmation, reading confirmation and documentation. Furthermore, this paper has proposed requirements for accreditation of e-mail service providers and also the requirements for equal handling of domestic e-mail service providers and foreign e-mail service providers. Regarding the legal methods for the introduction of international e-service, this study has dealt with the requirements for international service by e-mail and legal measures necessary for the introduction of international service by e-mail. The followings are suggested as the requirements for international service by e-mail: (ⅰ) the person to be served must have explicitly agreed to use a specific e-mail account for the purpose of delivering the judicial document, (ⅱ) the law of the foreign country in which service is conducted does not prohibit service by e-mail, (ⅲ) service shall be performed by an e-mail service provided by an accredited domestic e-mail service provider, (ⅳ) the e-mail account to be served shall be an account provided by an accredited domestic service provider or a foreign e-mail service that is treated equally. As to the proposed legal measures requisite for international e-service shall include: (ⅰ) the stipulation of international e-service under the bilateral treaty and the expansion of the countries signing the bilateral treaty and memorandum of understanding, (ⅱ) the easing of the declaration of objection under the Hague Service Convention, (ⅲ) the amendment of the Civil Procedure Act, Act on International Judicial Mutual Assistance in Civil Matters, and the Act on the Use, etc. of Electronic Documents in Civil Litigation, etc. In reviewing the ways how to introduce international service by e-mail, interdisciplinary and integrated research in the field of international civil procedure law and technology would be prerequisite, and furthermore the difference between ex officio and party-initiative service, the equivalence and harmonization with domestic electronic service, and the special nature of international service should be carefully considered and weighed. It is expected for this study to play a momentum and constitute a continuum in the furtherance of more active discussions and research on the introduction of international e-service, aiming at implementing international e-service in practice, and ultimately to ensure the expedition of lawsuits and the reduction of judicial costs.