국제거래분쟁에서 강제집행면탈죄의초국가적 확장

Abstract

Under current international law it is against the principle of nonintervention to apply domestic criminal law to criminal act committed overseas by foreign actor(s). Such principle operates as a defense mechanism for the sovereignty of each nation state, that would also stimulate mutual respect for the originality of diverse criminal culture of different nations. However, in today's globalized world order, there occurs increasing number of cases in which we may perceive growing necessity to empower domestic criminal law certain degree of transnational validity. For instance, if it is strictly banned to apply domestic criminal law to the criminal acts committed by (alien) executives of foreign invested enterprises, such as hidden overseas assets and fraudulent conveyance, the stability of international transaction itself may not be sufficiently ensured. The rights of creditors in case of international contract cannot be fully protected by mere means of mutual recognition of overseas court decision or forcible execution under current international judicial assistant system. Notwithstanding such deficiencies, the evasion of compulsory execution clause of domestic criminal law should not be directly applied to evasions committed overseas by foreign actor(s), for such application without any restriction would consequently lead to indiscriminate violation of sovereignty. Thus my advisable interpretation for such cases would be to apply domestic clauses restrictedly on evasion of compulsory execution - only when such evasion case committed overseas by an executive of foreign investment enterprise meets with certain domestic references (Inlandsbezug). Domestic references would include the existence of an explicit agreement on mediation in case of any violation of contracts between foreign invested enterprise and domestic enterprise in international transaction, as well as the existence of the fact that original country of the foreign invested enterprise is also a member of New York Arbitration Convention which would ensure mutual approval and enforcement of mediation. When these conditions are all satisfied, the debtor who had lost the mediation's decision would be in "a state of danger to be subject to compulsory execution proceedings" according to evasions of compulsory execution clauses of current domestic criminal law, even if he holds foreign nationality with his property locating abroad. In other words, his act of evasion would then be interpreted as an act committed within the territory of Republic of Korea. With such interpretation, the evasion of compulsory execution clause may function as a transnational criminal law while not violating the principle of nonintervention under international legal order.