개정루가노협약에 따른 계약사건의 국제재판관할

In this article the author reviews issues on international jurisdiction (“jurisdiction”) in matters relating to contract under the Lugano Convention revised in 2007 and draws lessons for the jurisdiction under the Conflict of Laws Act of Korea, which was revised in 2001. Under the Lugano Convention, in matters relating to a contract, a person domiciled in a contracting state may be sued in another contracting state, that is, in the courts for the place of performance of the obligation in question (Article 5⒧). The meaning of “the place of performance” and that of “the obligation in question” have been the subject of much discussion. Since the obligation in question means the obligation which forms the basis of a lawsuit, lawsuits arising from the same sales contract could fall within the jurisdiction of different states depending upon whether a seller or a buyer files the suit as plaintiff. In addition, pursuant to the Tessili rule of the European Court of Justice, the place of performance had to be determined by the law applicable to the obligation in question designated by the choice of law rules of the forum. Thus, in order to determine the jurisdiction issues, one had to refer to the choice of law rules and the applicable law first. This position has been criticized as complicating the determination of jurisdiction and as preventing uniform interpretation of the Lugano Convention. In response to these critics the Revised Lugano Convention has introduced an autonomous definition of the place of performance, but only for contracts for the sale of goods and contracts for the provision of services. The place of performance is based upon the concept of characteristic performance of those contracts. However, the Revised Lugano Convention makes a compromise in that it still confers jurisdiction in matters relating to contracts other than those two categories on the courts for the place of performance of the obligation in question. By contrast, the 1999 Preliminary Draft of the Hague Conference is consistent in that it has does not confer jurisdiction in matters relating to contracts on the courts for the place of performance of the obligation in question. This shows varying approaches to defining the concept of place of performance, i.e., whether it should be defined by procedural approach without regard to the place of performance determined by the substantive law applicable to the obligation in question. Up until now the prevailing view in Korea is that Article 8 of the Code of Civil Procedure, whereunder for matters involving property a suit may be filed before a court of the place of performance of the obligation, could be used as the basis for jurisdiction in matters relating to a contract. The author believes that such a view is acceptable in principle. The author urges Korean scholars to pay more attention to the development in Europe in this respect and to make efforts to develop rules under the Conflict of Laws Act of Korea. In particular, as far as the matters relating to contract are concerned, we see a process of evolution from the Lugano Convention via the Revised Lugano Convention and to the 1999 Preliminary Draft Convention. The gist of Article 2 of the Conflict of Laws Act of Korea is to postulate that we formulate detailed and refined rules on jurisdiction by considering, but without being bound by, the venue provisions of domestic laws and regulations (most notably the venue provisions of the Code of Civil Procedure) and taking into consideration the characteristics of international jurisdiction distinct from domestic territorial jurisdiction.