로마I규정에 기초한 객관적 연결에 의한 국제계약의 준거법 결정에 관한 입법적 검토

By adopting the approach of the Rome Convention the Korean Private International Law was reformed to provide an advanced rule for determining applicable law for international contracts in the absence of choice in 2001. The structure of the Rome Convention began with the general clause of closest connection. The Rome Convention provided presumptions based upon the concept of characteristic performance to concretize the general clause. An escape clause could rebut the presumptions. The Rome Convention entailed lack of certainty and foreseeability as to the relationship between the general clause, the presumptions, and the escape clause. In particular there was no convergence in the practice of the courts in attaching due weight to the presumptions before being displaced. Only a few court decisions referring to the relevant provisions of the Korean Private International Law have been identified. It would be misleading to generalize the Korean courts’ interpretation by examining those available decisions. However, it is doubtful whether the Korean courts have provided the legitimate interpretation of the relationship between the general clause and the presumptions. Completely abandoning the structure of the Rome Convention, the Rome I Regulation first set out hard and fast rules for the eight typical contracts. Then the Regulation introduces the characteristic performance test without employing presumptions. In contrast to the Rome Convention the Regulation reduces the principle of closest connection to a subsidiary and residual rule. The escape clause ensures the necessary flexibility to avoid inappropriate consequences resulting from the rigid general clause. This could harmonize the tension between legal certainty and the pursuit for justice in the individual case. It remains to be seen whether the new frame gives rise to any difference and is an improvement on its precursor. Facing with the problems generated under the previous structure and misleading interpretation by the Korean courts, it would be inefficient to grapple with the previous structure of the Korean Private International Law until the courts have spawned an enough body of case law. More than 10 years have elapsed since the 2001 reform. The time is ripe to critique the current problems in pursuit of a new approach. The new approach of the Rome I Regulation could be critically benchmarked to establish hard and fast rules for the typical contracts, subsidized with the characteristic performance test and principle of closest connection and to provide flexibility through an escape clause. The reform should enshrine the rationale which law is best suited to apply to international contracts.