국제재판관할과 관련된 판결의 추이 및 국제사법의 개정방향 - 국제재판관할의 판단구조 및 법인에 대한 일부 과잉관할 쟁점과 관련하여 -

Article 2 of the Private International Act of Korea of 2001 provides that the international jurisdiction shall be determined by the standard of "substantial relations" and that the jurisdictional provisions of domestic laws shall be considered in that regard. Courts are therefore given broad discretion on jurisdiction, which also causes great uncertainty in the structure of reasoning and in the interpretation of certain exorbitant jurisdiction provisions on a legal entity in the Civil Procedure Code (hereinafter, 'the Code'). This article aims to analyze the trends and problems of court judgments, especially made by lower courts, that have been cumulated enough for the last 10 years regarding the foregoing issues. The Supreme Court at first had directly decided on the existence of the substantial relations considering all the circumstances, but later emphasized specific territorial jurisdiction provisions of the Code. In the meanwhile, a majority of lower courts' judgment focused mostly on the specific territorial jurisdiction clauses of the Code, and exercised jurisdiction when there existed any connecting factors provided in the territorial jurisdiction clauses of the Code even if those clauses might turn exorbitant as a basis for the international jurisdiction, or assumed that the exorbitance could be healed by other circumstantial elements. Some courts limited the application of those exorbitant jurisdiction clauses, but their standards of limitation vary. Therefore, we need more specific international jurisdiction clauses to reduce such uncertainty. This article also reviews the courts' application of specific territorial jurisdiction clauses that have exorbitant nature to the international jurisdiction matters. Firstly, many lower courts granted general jurisdiction to a legal entity provided it has a branch in the forum country regardless of whether the dispute relates to the activity of the branch. However, such jurisdiction is obviously exorbitant and should be limited through interpretation or amendment of the Code. Secondly, jurisdiction based on the presence of the defendant’s property in the forum country has been generally limited by lower courts, but each court has adopted different standards in limiting the extent of jurisdiction, which calls for a specific provision on the issue. Lastly, regarding the jurisdiction based on the place of performance of the obligation, lower courts have decided differently on whether the jurisdiction is limited to contractual obligations or may be extended to non-contractual obligations, whether the place of performance should be determined by lex fori or by conflict of laws, and whether secondary obligations could be included, which also necessitates specific provisions on the above matters.