중국 국제사법상의 쟁점 -국제투자를 중심으로-

The People’s Republic of China (“PRC”) does not yet have a comprehensive system of private international law. While the the Act on Conflict of Civil Laws was recently promulgated, this law deals with only the application of law, rather than providing a comprehensive set of substantive law. Due to the lack of legal system for private international law, the Supreme People’s Court of PRC has filled in gaps with its interpretations where necessary. However, there has been a controversy over whether the Court has the authority to render such interpretations, and there exists a possibility of abuse of authority. The lack of legal system has had significant impacts on legal practice. In legal proceedings, there has been a tendency of favoring lex fori. The PRC courts’ jurisdictional scope relating to private law has expanded. There has been various restrictions on the application of agreement between contracting parties with respect to jurisdictional matters. Through the enactment and application of the Act on Conflict of Civil Laws, the excessive emphasis on lexi fori should be resisted. Also, contracting parties’ agreement over jurisdiction should be recognized to the greatest extent possible. While PRC courts have been relatively lenient in recognizing the outcome of overseas arbitration proceedings, the PRC courts have rarely upheld the decisions of foreign courts despite relevant regulations in civil procedural laws which support recognition. PRC courts have recognized the decisions of a handful number of foreign countries, including Italy, based on PRC’s agreement with such countries for mutual recognition of court decisions. In light of the foregoing, should PRC and Korea enter into any agreement, or amend any existing agreement, relating to cooperation on private legal matters, Korea should make efforts to incorporate in the agreement, measures that would facilitate mutual recognition of court decisions.