從屬的 連結에 의한 不法行爲의 準據法

Private International Law stipulates a general choice of law rule in tort favoring the law of the state where the damage arises, or is likely to arise. There is an exception to the general rule. When a preexisting relationship between parties is breached by a tort, the Law lays down an exceptional rule that the law governing the preexisting relationship should also determine the claim for the tort between the same parties. By having the same law govern all their relationships, this may well reflect the legitimate expectations of the same parties and promotes unity of applicable law, certainty and predictability. The sphere of application of the exceptional rule is first limited by its nature. The existence of a particular relationship should be an essential component of the tort in question. The claim in tort should not be legally freestanding. Notwithstanding the exceptional rule, where it is clear from all the circumstances of the case that the claim in tort is manifestly more closely connected with another state, the law of that state should apply. Also the application of the law specified by the exceptional rule may be refused if such application is manifestly incompatible with the public policy of the forum. In addition the exceptional rule is limited to the extent that questions of procedure should be determined in accordance with the law of the forum. Possible approaches to multiple claims should be pursued from the substantive law perspective and the procedural law perspective as well as from the conflict of laws perspective. In interpreting the law a claim based on either the preexisting relationship or tort does not exclude or prevail over a claim based on the other. The law applicable to the tort should determine whether the claim based on the preexisting relationship excludes the claim based on the tort. The procedural law of the forum should determine how the parallel claims are handled in the proceedings.