로마협약 제3조 및 제4조를 둘러싼 최근 유럽에서의 논의와 그 시사점에 관한 연구

Abstract

The so-called Rome Convention has been regarded as one of the most successful international conventions in regulating the choice of laws problems in the European Union. In addition the basic scheme and concept of this Convention have also been adopted in some domestic statute in other Civil Law jurisdiction such as Korea as a model. Notwithstanding this appearance of seemingly uniformity, there seem to be some conflicts among domestic courts in the Member States especially surrounding the interpretation of core provisions, i.e., Articles 3 and 4 in the Convention. For the worse the discrepancy among different courts as regards the interpretation of above provisions seems to be widened coupled with the homebound attitude of each domestic court. At this juncture it seems necessary to try to find a solution to these conflicts under the European standpoint and this issue will also be helpful both in theoretical and in practical perspectives even to other Civil Law jurisdiction which has adopted the basic ideas and schemes of the Rome Convention. Under this realization this article has first focused on the essence of the problems in basic content and scheme of Articles 3 and 4 of the Rome Convention as a starting point and then discussed more fully the present difficulties which were experienced throughout jurisdictions in regard to harmonious and consistent interpretation of the above Articles. Afterwards the attention has been paid to the critical evaluation of the strengths and weaknesses of each position which dealt with this legal dilemma bearing the original intent of the Convention in mind. Specifically this kind of work which is to put in order the general tendency among academics and authorities in various European jurisdictions in regard to Articles 3 and 4 in the Rome Convention will be meaningful in terms of the fact that Articles 25 and 26 in the revised private international law in Korea which was effected from July, 7th 2001, have adopted the basic contents of Articles 3 and 4 of the Rome Convention. Especially even though there is a difference in the scheme between the Rome Convention and the revised private international law in Korea, there seems to be high probability that the wrangles in Europe around Article 4(2) and 4(5) will reappear in Korea since the Article 8(1) in revised private international law of Korea recognized the exceptions to the choice of law similar to those of the Rome Convention in general form.