외국재판의 승인과 집행의 근거의 재정립과 외국재판의 승인과 집행의 대상 및 상호보증과 관련한 몇 가지 문제

Abstract

The results of proceedings recording the parties’ intention as it is are not the foreign judgments that can be recognised and enforced in Korea as the foreign judgements which are the subjects of recognition and enforcement mean judicial assessments by the judicial institutions. Applying the above criterion to default judgment and consent judgment in England, these judgments are not the results of proceedings recording only parties’ intention though subject matters of which are not assessed, in that these judgements have to fulfill certain requirements provided in the Civil Procedure Rules and these fulfillments should be assessed by the court. In this regard the default judgment and the consent judgment in England are included in the foreign judgements that can be recognised and enforced in Korea. However, confining the subjects of recognition and enforcement to the results of the exercise of judicial power by the judicial institution is justified only when grounds of recognition and enforcement of foreign judgements is sought from comity of nations. If recognition and enforcement of foreign judgements is based on the protection of private interests, that is to say, respect of legal relationship finally determined in foreign countries the subjects of recognition and enforcement should be extended to ‘judicial effects which are finally determined or can be enforced by foreign laws.’ The above change of concept is expected to enhance foreceability and make the unnecessary discussion on the scope of recognition and enforcement ended. In addition, it is necessary to make it clear that the pure purpose of recognition and enforcement of res judicata and enforceability that arose in foreign countries is to recognise and enforce the legal relationship finally determined in foreign countries by way of abolishing the principle of reciprocity that is the vestige of comity of nations.