한국 국제재판관할법상의 특별관할 －재산관계사건 판례의 현황－

Korean law of international jurisdiction heavily relies on the interpretation, especially analogy from regional jurisdiction rules or judicial lawmaking. In this background, Korean courts have analogized a set of special jurisdiction rules for proprietary causes, while cautiously trying to differentiate from regional jurisdiction rules. For contracts, Korean case law recognizes contract jurisdiction at the place of performance. Although it is not clear whether Korean courts have consciously engaged in a comparative analysis, Korean courts have effectively attempted to identify an appropriate limit for contract jurisdiction regarding various issues. Moreover, a recent decision of Korean Supreme Court shows a preference for the idea of concentrating on characteristic performance (Supreme Court 2008. 5. 29. 2006da71908, 71915). For torts, Korean case law recognizes a need for limiting the availability of jurisdiction at the place of harm. For product liability, Korean Supreme Court once adopted the criteria of requiring the defendant’s specific territorial contacts with the forum in addition to putting the product in the stream-of-commerce (Supreme Court 1995. 11. 21. 93ek39607). For defamation, Korean Supreme Court has effectively required a higher standard for place of harm. There is a room to read the rationale to mean that only the place where the victim has his domicile (or residence) or principal interests (or also the place where the victim suffered a severe harm) may qualify as the place of harm for the purpose of jurisdiction (Supreme Court 2003. 9. 26. 2003da29555). For jurisdiction at the place of property, Seoul High Court has attempted to present a workable limitation to its availability (Seoul High Court 2006. 1. 26. 2002na32662). However, those limitations do not appear very appropriate or useful. Indeed Korean case law reveals some confusion on the meaning of Article 2 of Korean Private International Law. Nevertheless, it is still interesting to see how Korean Supreme Court and lower courts react to each concrete issue of international jurisdiction. Whether it was a product of conscious and earnest comparative analysis or not, one may find some interesting contributions from Korean case law in developing the law of international jurisdiction by interpretation. A concrete understanding of Korean case law will be a necessary groundwork for future efforts to design an autonomous legislation and considering how to proceed with international conventions.