國際的 强行法規 개념의 요소로서의 抵觸法的 强行性

Jang, Jun hyok In approaching choice-of-law problems, the general tendency today is to begin with legal relationship and search for applicable law to the legal relationship (lex causae), while at the same time acknowledging the special applicability of internationally mandatory rules. The process of ascertaining such rules’ international scope of special applicability begins with identifying conflicts rules expressly provided for or contained in such substantive rules. In ascertaining whether a certain substantive rule is an internationally mandatory rule and how far it claims to apply, the court should apply an explicit conflict-of-laws provision if there is one. If there is no such statutory provision, the court should interpret the substantive rule in order to determine whether the legislator has intended or may be said to have intended its special applicability regardless of lex causae. This criterion is functionally identical with the criterion provided in article 7 of the Korean Private International Law, which refers to “legislative purpose” as the critical point of reference in this interpretation. Most importantly, the court is advised to apply a strict standard in identifying internationally mandatory rules and its purported scope of application. The concept of internationally mandatory rules is widely accepted today. Meanwhile, there are also disagreements in the details of this concept, especially in the two following respects, although these differences in theoretical perspectives will rarely lead to differences in result. Scholars disagree on whether a substantive rule should also be mandatory in the sense of internal law in order to qualify as an internationally mandatory rule. Also, there are two different ways to explain how internationally mandatory rules of the lex causae apply to the case. Those issues persist and remain to be explored even after the Rome Convention came into effect.