법정채무의 준거법에 관한 EU 규정 분석- 미국 국제사법에 중점을 둔 비판 -

Abstract

European Parliament and European Council adopted EC Regulation for the governing law of the non-contractual obligations on July 11, 2007, and it came into force on Jan. 11, 2009. Member countries of the European Union have choice of law provisions, and there exists more than 15 systems of private international law in EU, making governing law for the non-contractual obligations in each country inconsistent. This problem caused the plaintiff to search for the favorable governing law with forum shopping. With the adoption of this Regulation, the Regulation takes precedence over the forum's international private law in connection with the non-contractual obligations in the member countries of the European Union, which enables the same governing law to be applied to the same case wherever the suit was brought. This Regulation contains the choice of law provisions for tort/delict, and for other non-contractual obligations including unjust enrichment, Negotiorum gestio. It not only has the general rule for the tort/delict, but also the detailed choice of law provisions for product liability, unfair competition, environmental damage, infringement of intellectual property rights and industrial action. Korean international private law which was modified in 2001 changed the choice of law provisions in accordance with the international trend, but it has only the general rule for the tort and other non-contractual obligations. This Regulation is expected to provide much assistance to the rule making for governing law of the specific torts in Korean international private law. This paper tried to make analysis on this Regulation with American perspective on the choice of law. American conflicts of law rules criticize the traditional choice of law rules as rigid and arbitrary, and try to replace it with flexible, policy and interest oriented rule. American rule provides the court with discretion in making decision of the governing law for each case to make it the law of the country which is closely connected with the case. It is issue-by-issue oriented, and make distinction between conduct regulation and loss distribution. The reason why I make analysis on this Regulation with American perspective is that the way to supplement the civil law choice of law rules which is the mechanical application of the governing law rules can be found with the flexible, policy oriented rules.