브뤼셀 제1규정상 출판물에 의한 명예훼손의 불법행위지관할

Article 5(3) of the Brussels I Regulation and the Brussels Convention provides for special jurisdiction of the courts of the place of tort. The case law of the European Court of Justice has interpreted this connecting factor to include both place of wrongful behavior and place of harm. This basic position appears similar to and was apparently influenced by the autonomous German law as understood by the German case law and academics, which begins with the ubiquity principle. However, the ECJ went on a somewhat different path, unknown to autonomous German law, when it was presented with a diffusive tort. The ECJ held in Shevill v Presse Alliance (1995) that the jurisdiction of courts in the place of harm covers only the harm inflicted there and nowhere else. The most important rationale for such interpretation was essentially that a doubt in interpretation should be solved in the defendant's favor. This holding makes sense, especially in view of the conspicuous policy shift in the balancing of interests made by the European legislator. However, this reasoning effectively leaves unanswered where the balance should ideally be struck between both parties' interests. Shevill case presented a clear formula for determining jurisdiction in defamation cases in interpreting tort jurisdiction under the Brussels regime. It applies generally to defamation through printed matters, regardless of how diffusively the effect was perceived. However, Shevill criteria cannot be understood as an ideal solution which would be unversally recommendable for all other legislators. There are both approvals and criticisms over Shevill decision in and outside Europe. Perhaps the majority of legal literature in German-speaking jurisdictions tends to evaluate Shevill criteria positively, in that the ECJ strived to develop an autonomous standard for the Brussels regime that could balance both parties' interests in the Brussels regime's own way. However, some influential writers doubt whether Shevill solution is a functional one. Some German scholars criticize Shevill criteria for unduly curtailing the victim's interests in international civil procedure law. Most importantly, tort victims have not voluntarily chosen to be a party to an international dispute themselves and get involved with an internationally active mass media. Moreover, as Professor Schack points out, an unlimited jurisdiction at the place of harm will have a positive side-effect of inducing more caution from the press. On the other hand, others criticize Shevill criteria for failing to put a due limitation on the victim's choice and effectively allowing for the victim's forum shopping. Shevill criteria still allows the victim to sue in a place where any minor effect was felt, including England which is a particularly attractive venue for libel victims. A lawsuit in a place of minor harm will create a significant burden for tortfeasors, because tortfeasors will still be required to defend a lawsuit there. It was in the background of this debate that the ECJ came up with a modification of Shevill criteria for internet defamation in eDate and MGN cases. An overview of Shevill case and its scholarly evaluation offers an invaluable perspective in understanding the problems of Korean case law and legal writings and anticipating future directions of Korean law of international jurisdiction. Korean case law has illustrates a tendency that is different from Shevill case law. In the Supreme Court judgement of Sep. 26, 2003, 2003da2955, an ex-Congessman domiciled in Korea sued his own political party in a California court for posting a defamatory public announcement in its internet home page. The Supreme Court ruled that California failed to qualify as a place of tort, although the defendant's public announcement was accessible in California and remained posted in the defendant's home page when the plaintiff went to California and resided there as a visiting researcher. This ruling effectively adopted a strict test in identifying a place of harm, which appears to be in line with the general tendency of Korean case law that is under a strong influence of the territorialism-minded American law of jurisdiction. On the other hand, one may also notice a tendency among Korean scholars to accept Shevill case law as an undisputably sound solution and focus on its common features with the target theory of American case law. The two tendencies, one from earlier case law and the other from Korean academics, are clearly not in accord, although the Korean academia does not appear to be sufficiently aware of this difference. It is submitted that an analysis of Shevill case in this paper has revealed the importance of distinguishing the two different approaches to tort jurisdiction in diffusive tort. Shevill solution upholds tort jurisdiction in each place of initial damage, but limits the material scope of this jurisdiction. The ECJ was apparently satisfied with this solution, in terms of proper balance between parties' interests, and therefore has not seen any serious need to apply a strict test in identifying place of harm. In the opposite, the Korean Supreme Court initiated with a stringent test in identifying place of harm, and therefore felt no need to adopt Shevill-modeled restriction on the material scope of the jurisdiction in the place of harm. Therefore, Korean legal academia cannot blindly remain satisfied with a coincident cohabitation of the Korean Supreme Court precedent and the willingness to accept Shevill criteria, because this may be an excessive limitation on jurisdiction in the place of harm. In discussing future directions of Korean law, either in interpreting current Korean law and discussing a possible legislation, it is necessary to engage in a serious interest analysis before deciding whether to continue to pursue the line of the Korean Supreme Court or to shift to Shevill jurisprudence as the basic position, and what kind of modification or a compromise could be attempted that could accommodate the two approaches.