국제계약에서 강행규정에 의한 당사자자치의 제한

The parties are free to choose the governing law in drafting an international contract. When they fail to choose the applicable law, the basic rule is that the contract shall be governed by the law of the country with which it is most closely connected. Whether they choose the governing law, a state’s interest in having its mandatory rule superimposes the rule on to the international contract. This leads to uncertainty and restriction on the autonomy of the parties in the international contract. It would promote the development of international trade to review how far the parties may escape from the mandatory rule and to ensure them legal certainty and predictability in the international contract. Mandatory rules are laws from which the parties cannot derogate by contract. There are two types of such rules. Domestic mandatory rules are rules which cannot be derogated from by agreement. International mandatory rules are rules which cannot be derogated from by the parties’ agreement and which are intended to apply regardless of the law applicable to the international contract. The concept of domestic mandatory rules is used in mandatory rules of the country with which all the other elements relevant to the situation are connected, the rules of the country in which the consumer has his habitual residence, and the rules of the country in which the employee habitually carries out his work in performance of the contract. The mandatory rules operate as a limitation on the freedom to choose the applicable law. In light of their nature and purpose the international mandatory rules of the forum shall apply irrespective of the law otherwise applicable to the international contract. Unlike Korea some other jurisdictions allow for the discretionary application of the international mandatory rules of the law of anther country with which the situation has a close connection. Korean courts’ precedents fail to draw a clear line and even contradict to each other in applying mandatory rules in an international contract. This murky situation undermines certainty and predictability the parties expect in the international contract. Private international law is expected to refine mandatory rules by the type. Substantive statutes could provide whether they intend to have overriding effect. Even before the law reform the courts are required by elaborate construction of statutes to show a bright line in determining whether a mandatory rule is an international one. This would get rid of uncertainty associated with the international contract and promote international trade.