國際裁判管轄 決定의 一般的 基準으로서 實質的 關聯의 原則 －韓國法院의 判例를 中心으로－

The Korean Conflict of Laws Act (Private International Act), through its entire amendment in 2001, adopted the substantial connection test in its Article 2 as the general standard to determine the international jurisdiction. Formulation of this principle was based on the developments of the Korean supreme court cases as well as the scholarly achievements made domestically and internationally. Article 2 (International Jurisdiction)(1) In case a party or a case in dispute is substantively related to the Republic of Korea, a court shall have the international jurisdiction. In this case, the court shall obey the reasonable principles, compatible to the ideology of the allocation of international jurisdiction, in judging the existence of the substantive relations. (2) A court shall judge whether or not it has the international jurisdiction in the light of the jurisdictional provisions of domestic laws and shall take a full consideration of the unique nature of international jurisdiction in the light of the purport of the provision of paragraph (1) above. English translation provided by the Korea Legislation Research Institute As stipulated in the Article, the international jurisdiction will be established based on certain connecting factors between Korea and the dispute or the party, where the connecting factor should qualify as substantial under the scrutiny of certain tests such as the reasonableness test, the domestic jurisdiction rules, and the international characteristics review. The domestic jurisdiction rules included in the Korean Civil Procedure Act could be a good starting point to examine the connecting factors. Majority view is to classify the domestic jurisdiction rules into three groups: first group of rules that can be used as rules for international jurisdiction as such, second group of rules that can be used as rules for international jurisdiction with some modifications and the last group of rules that can not work as rules for international jurisdiction. If the connecting factors found fall under the first group of rules, then the substantial connection can be deemed to exist presumably, unless rebutted otherwise. If the connecting factors found fall under the second group of rules, the substantial connection can not be deemed to exist per se, and other strengthening factors need to be found. If only the connecting factors that fall under the last group of rules are found, such findings do nothing in establishing the international jurisdiction. There can be other group of connecting factors that do not fall either of the three domestic rules groups but can still justify the existence of a prima facie substantial connection. Once the existing connecting factors are found, such factors will be evaluated under the reasonableness test, in consideration of the special characteristics of the international jurisdiction. If a substantial connection is found, the international jurisdiction is deemed to exist. After an international jurisdiction is established, there is no negation of court proceedings based on forum non conveniens rule, that are not recognized under the Korean law.