한국법원에서 제기된 중국법의 쟁점 - 계약법, 불법행위법, 혼인법과 외국판결의 승인⋅집행을 중심으로 -

At present China is the largest trading partner of Korea and personal exchanges between Korea and China are very active. Accordingly, the number of cases where Korean courts are required to apply Chinese law as the governing law is increasing. In this article the author discusses issues on application of foreign law in general, and then presents several cases where Korean courts actually applied Chinese law. First case is related to a sales contract between a Chinese seller and a Korean buyer. Since the parties did not select a law applicable to the contract, the Korean courts correctly held that the UN Convention on Contracts for the International Sale of Goods applied to the contract. While the plaintiff filed a suit requesting the defendant to pay the outstanding balance of the sales proceeds, the defendant exercised its right of set-off based upon its alleged claim for compensation of damages arising from the plaintiff’s breach of contract. The court of first instance applied Korean law, whereas the court of second instance applied Chinese law, which is correct. Second case is related to a case for compensation of damage suffered by successors of a Korean passenger killed by the crash of a domestic flight airplane in China. The family of the deceased Korean filed a suit against the Chinese airline to seek compensation of damages incurred by the death of their husband/father. Courts of both first and second instances applied Chinese law to the tort. The judgment of first instance adopted the so-called succession theory whereby the claim for compensation of damage (i.e., loss of income) of the deceased is succeeded to by the successors of the victim. On the other hand the court of second instance adopted the support theory whereby the successors lose their right to support. Third case is related to a sham marriage between a Korean husband and a Chinese wife which has been held invalid. Fourth case is related to recognition of a Chinese judgment by Korean court. After comparing the requirements for recognition and enforcement of both Korean and Chinese laws, the Korean court acknowledged the existence of reciprocity between Korea and China. Obviously, this conclusion is based upon the assumption that Chinese courts will in reality comply with its internal law regulating recognition and enforcement of foreign judgments. Korean courts appear to apply Chinese law that has been designated as the law applicable to the issue in question as well as the Korean Private International Law Act correctly. In order to enable Korean courts to apply Chinese law more correctly, we need to enhance the level and quality of research on Chinese law in Korea. Of course Korean courts will need to make use of the legal information cooperation set forth by the bilateral treaty between Korea and China.