국제이혼관할에 관한 전통적 판례와 하급심에서의 수정시도 -대법원 1975년 판례의 등장과 국제사법 제2조 신설 전까지의 판례의 전개-

Korean case law on judicial jurisdiction in divorce matters had tended to acknolwedge jurisdiction based on either spouse's domicile and jurisdiction based on the husband's nationality on an equal footing, when the Supreme Court introduced a new case law in its judgment of July 22, 1975, 74meu22. The legal doctrine stated in this decision, which was presumably borrowed from Japanese case law, established the mainstream case law at once, and had been subject to only partial amendments in subsequent judicial decisions. According to the mainstream case law, defendant's domicile serves, in principle, as the sole basis of divorce jurisdiction; plaintiff's domicile shall be the connecting factor for divorce jurisdiction only in such exceptional situations where the whereabouts of the defendant spouse is unknown, or he or she has deserted the other spouse, or in like circumstances. The published precedents of lower courts have treated this mainstream case law as stating the general framework of the law of international divorce jurisdiction, applicable regardless of the parties' nationality, rather than a special rule solely pertaining to divorce actions between foreigners. Meanwhile, the Supreme Court judgments in this period has failed to clearly resolve the question of how to handle nationality-based jurisdiction. In this respect, two different movements appeared in lower courts. On the one hand, the Seoul High Court judgment of November 4, 1985, 84reu285 opined that husband's nationality still persisted as a valid basis of jurisdiction. This lower court case law turned out to be short-lived, failing to be explicitly followed in subsequent reported cases, presumably due to the discriminatory nature of this rule. On the other hand, the Seoul Family Court judgments of December 30, 1986, 85deu6506, September 20, 1989, 88deu65835, May 9, 1991, 90deu75828 showed a modest tendency of referring to plaintiff's nationality as well as his or her domicile, while the dominant case law in this period would have expected the court to refer only to plaintiff's domicile to invoke the exception to the actor sequitur forum rei rule. This attitude or gesture of the Seoul Family Court is also worth noting, because it tends to put some weight on nationality in deciding international divorce jurisdiction. Moreover, this latter tendency might later have culminated in the creation of a settled practice of the Seoul Family Court that acknowledges divorce jurisdiction of the state of which the plaintiff is both a national and a domiciliary. With the Supreme Court ignoring and remaining silent on the former doctrinal attempt and the latter practice of lower courts, these developments in lower courts have, in a sequence, practically coexisted with the mainstream case law in this period of 1975~2000. Interestingly, both of the two propositions may have a meaning in relation to the doctrine of forum legis, which suggests that the applicability of Korean law to a case at hand is a sufficient basis for jurisdiction of Korean courts over it. Under Article 18, main sentence of Sŏbwesapŏb [External Private Law], which applied until June 30, 2001, husband's nationality was the connecting factor for determining the applicable law to divorce. In this connection, one may conveniently invoke the notion of forum legis to argue that this connecting factor should also establish international divorce jurisdiction in the husband's home state. It was indeed part of the Seoul High Court's argument for the jurisdiction based on husband's nationality. Under Article 39, proviso of Kukjesapŏb [Private International Law], which would later come into effect on July 1, 2001, Korean law would apply to a divorce to which a party is a Korean national with a habitual residence in Korea. In such a case, the doctrine of forum legis will assert Korean jurisdiction, which may give a cogent theoretical explanation to the post-2001 practice of the Seoul Family Court, which might perhaps find its root in the above mentioned judicial practice that appeared in the Seoul Family Court since 1986. On the other hand, there also appeared a decision which apparently adopted a generally applicable rule of plaintiff's jurisdiction (Seoul Family Court decision of February 21, 1984, 83deu4846). Those attempts in the lower court appear to have been motivated by the following limits of the mainstream case law. First, jurisdictional bases are too selective and narrow. Jurisdiction based on one spouse's domicile is upheld only in exceptional situations; nationality-based jurisdiction is wholly excluded. Second, the mainstream case law has neither made any attempt to adopt the notion of forum legis so as to alleviate the harshness to the plaintiff. In the period of 1975~2000, lower courts have made attempts to partially accommodate nationality-based jurisdiction, but the Supreme Court has never expressed an interest in those attempts. In this way, Korean case law in this period has failed to elaborate a reasonable and systematic set of rules on international divorce jurisdiction. This problem still persists today, to a significant degree.