국제사법상 반정범위의 적정성

This article deals with the rule of renvoi under the Private International Law of Korea and the appropriate sphere of that rule. Renvoi (from the French, meaning “send back” or “to return unopened”) is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. The potential problem of renvoi only arises if the foreign country's choice of law rule is different from the forum's one Whether or not the foreign law designated as a governing law in a certain case contains the choice of law rules in that country depends on the forum state's rule of renvoi. If the forum state has the rule of renvoi, the reference includes the foreign conflicts law and the reference is said to be to the whole law, not just to the local(internal) law of the other jurisdiction. If the forum state has the different rule of conflicts law from the other jurisdiction(i.e. a relevant country), there are two options : to deny renvoi and apply the foreign country's local law or to accept renvoi. The rule of renvoi is not same over the world. There are several types of renvoi: remission, transmission or onward transmissions, double renvoi, and hidden renvoi. The application of renvoi vary among the countries having the rule of renvoi. Germany, Japan, Republic of Korea, France, Austria etc. admit the rule of renvoi. England, Australia, the United States of America limit the rule of renvoi in the restricted fields. There are some advantages and disadvantages of renvoi, and there is no right answer about renvoi. In the European Union, application of renvoi is expressly excluded in contract cases by Regulation (EC) 593/2008 on the law applicable to contractual obligations (‘Rome I regulation’), which replaced EC Convention on the Law Applicable to Contractual Obligations (Rome 1980), and in tort cases by Regulation (EC) 864/2007 (Rome II regulation) on the law applicable to non contractual obligations has been in force, controlling in a uniform way the rules throughout the European Union. In the United States most courts try to solve conflict of laws questions without invoking renvoi. In Australia, the doctrine of renvoi was revived by the decision of the High Court in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 (29 September 2005). Japan has the same rule of renvoi in the new Private International Law fully revised in 2006 as the old Private International Law. It is rare to apply renvoi in a broad way. And there are three main difficulties in cases where renvoi may be an issue: It gives undue weight to the evidence of the experts on foreign laws. The reference to the conflicts system used in other laws may reveal differences that would have arisen in characterisation or in the choice of law rules to be applied. There may be an “inextricable circle” between sets of laws using either single or double renvoi systems which do not have adequate safeguards built in to guarantee when to stop accepting remissions. Therefore, renvoi must be recognized in a necessary extent and in a limited way. Even if the foreign law designated as a governing law refers to Korean law, the adequate relevancy of Korean law with the case must be required to apply Korean law. This requirement must be added to article 9 of Korean Private International Law(KPLI). And point 5 of subsection 2 of article 9 of KPLI must be added by arts. 61 and 62 of KPLI. Also point 6 of subsection 2 of article 9 of KPLI must be specified in detail. This will prevent the unappropriate or undesirable expansion of renvoi that the combination of broad application of subsection 1 of art.9 and the negative interpretation of point 6 of subsection 2 of art.9 of KPLI may cause.