부양사건의 국제재판관할 -입법론을 중심으로-

Abstract

Korean law lacks in a statutory provision on special jurisdiction over a maintenance obligation arising from family relationship. The question of international maintenance jurisdiction is left to interpretation under the general guidance clause of Article 2 of the Korean Private International Law. There is no dispute in acknowledging jurisdiction at the defendant's habitual residence (or domicile). In addition, jurisdiction might also be upheld at the place of performance and the place of defendant's property, as long as support cases could be characterized as proprietary cases in a broader sense. The current state of law falls short of being a desirable one, because the two following essential points need to be upheld but are not yet supported by clear authority. Firstly, a maintenance creditor, who will typically be a claimant, cannot sue in his or her own court. The place-of-performance jurisdiction should be limited to contract cases and comparable “civil and commercial” cases such as unjust enrichment. The obligation to provide monetary support arising from family relationship should be treated differently from a contractual or other proprietary obligation. Secondly, the location of property should be the last resort and its applicability should be appropriately limited. Place of property should not be allowed to serve as a basis of maintenance jurisdiction at all. Indeed, this controversial head of jurisdiction has no proper function to serve in the area of maintenance, because a maintenance creditor should be allowed to sue in his or her own court any way. Moreover, a maintenance creditor should also be protected from being sued in a mere place of property by a maintenance debtor. While it is theoretically possible to argue for the above set of rules under the current Article 2 of the Korean Private International Law, which looks to internal jurisdiction rules for guidance in a possibly selective way, it is not realistic to expect Korean case law to develop this way, considering their deep attachment to the room of manoever under Article 2 and their persistent efforts to broaden judicial discretion in this regard. This strange impasse between the legislative guidance and the judicial pursuit of institutional self-interest inevitably will lead anybody interested in this area to demand a legislative reform. There are a series of concrete issues for the Korean legislator to consider. Regarding the necessity of having a maintenance creditor's jurisdiction, no objection has yet been raised in past discussions in Korea. An issue of minor but delicate importance is which personal connecting factor to adopt in the statutory provision. The majority of legislations abroad indicate a depart from domicile and a converging trend toward habitual residence. The idea is that maintenance creditor should be allowed to sue at his or her habitual residence, without having to establish his domicile there. However, there may be practical value in upholding jurisdiction at the creditor's “domicile” as well as his or her habitual residence, because it may be easier for the creditor to prove his “domicile”. But one should also note that this residual role of “domicile”-based jurisdiction will only play a minor role. Therefore, the national legislator may perhaps be satisfied with defining maintenance creditor's jurisdiction in the state of his habitual residence. In addition to the maintenance creditor's habitual residence, it would be proper to admit a few other bases of jurisdiction. Here consideration should be given to the nature of maintenance claim. It is a claim that arises out of a family relationship, but once it is created, it takes the form of a monetary claim. On the one hand, maintenance claim is closely related to the family relationship from which maintenance obligation arises. On the basis of this link, jurisdiction in maintenance may also be upheld when maintenance is the subject of court proceedings as “subsidiary cases” or “effect cases” along with the family relationship from which the maintenance obligation arose. In this regard, a delicate issue of nationality-based jurisdiction will present itself in an indirect way. The question is: where jurisdiction over the subject matter of the main proceeding (e.g. marriage dissolution or establishment of parent-child relationship) is justified by a party's or both parties' nationality, should we allow extension of this jurisdiction to maintenance obligation that arises out of the family relationship? One scholar proposes a compromise solution: where the jurisdiction over the main proceeding is based solely on one party's nationality, maintenance jurisdiction may not be justified in terms of subsidiary jurisdiction doctrine; where the jurisdiction in the main subject matter is based on both parties' nationality, this may justify subsidiary jurisdiction in the resulting maintenance obligations. This legislative solution is interrelated with another important issue of which bases of jurisdiction should be admitted for marriage dissolution, establishment of parent-child relationship, and other family matters, and should therefore be left to future contemplation. On the other hand, maintenance claim is money claim and therefore akin to other civil and commercial claims. A maintenance creditor should normally be allowed to dispose of his claim in a certain way, and this is so with jurisdiction. Submission and jurisdictional agreement may also establish jurisdiction in maintenance cases. There is also a difficult issue of continuing jurisdiction of the creditor's court as a bar to the debtor's claim for modified order. This rule is found in the 2007 Hague Maintenance Convention and 2008 EU Maintenance Regulation. Notably, they are international instruments that rule on recognition and enforcement of foreign maintenance decisions but fall short of completely unifying the rules of direct jurisdiction. Indeed, this rule will be useful in tackling different rules of jurisdiction ratione materiae in non-contracting states or those of contracting states that apply in relation to non-contracting states, e.g., jurisdiction based on the debtor's or creditor's nationality. However, such continuing jurisdiction rule may become unnecessary if contracting states should agree on a unified set of direct jurisdiction rules that excludes such national variations. The rule of continuing jurisdiction will also be found redundant in the national rules of direct jurisdiction in Korea, as long as the jurisdiction ratione materiae for maintenance will be defined on the sole basis of the creditor's habitual residence, as submitted by the present writer.