민사소송법 제217조의 승인대상으로서 ‘외국재판’의 개념 - 외국법원의 면책재판 등에 관한 논의를 중심으로 -

Abstract

Korean Civil Procedure act was amended by Act No. 12587, May 20, 2014. partially, which included Article 217, recognition of foreign judgments. The old regulation had ruled effect of foreign judgment as final and conclusive judgment. The new regulation expand the object of recognition into 'a final and conclusive judgment rendered by a foreign court or a judgment acknowledged to have the same force'. This reflects the existing opinion and precedent of korean courts. The Korean system of 'recognition of foreign judgment' demand ⅰ) the qualification as the foreign judgment, ⅱ) approval requirements by the first to forth clause of Article 4the article 217. If certain foreign judgement meets these prerequisites, it could take effect automatically without any other procedure. Meanwhile, Korean Debtor Rehabilitation and Bankruptcy Act regulate 'recognition of foreign bankruptcy procedures'. The representative of the foreign bankruptcy procedures may file an application for commencement of domestic bankruptcy procedures or participate in domestic bankruptcy procedures that are in progress. This system is non-automatic unlike 'recognition of foreign judgment'. Though the exemption judgement of foreign court is rendered as a process of foreign bankruptcy procedure, recognition of foreign bankruptcy procedures is a process which acknowledge a qualification for relief in korea, to be recognized as a judgement, 'recognition of foreign judgment' is appropriate procedure. This conclusion is adequate, taking into account for 'the qualification as the foreign judgment' which is deducted by the writer of this article, ⅰ) Foreign judicial authority have to judge within it's power, ⅱ) The object of judgement is about civil or commercial matters, ⅲ) The parties foreign of suits have to be given the opportunity to state an opinion in the procedures, ⅳ) The judgement have to be final and conclusive.