이혼 기타 혼인관계사건의 국제재판관할에 관한 입법론

In the context of international litigation, the forum has a very important meaning. This is because the practical difficulties resulting from the geographical distance to the court and the language barrier which the parties have to deal with will depend upon the forum. Also not only the procedural rules applicable to the litigation but also the substantive rules applicable to the merits of the dispute could vary depending upon the forum. This is also the case with the family law disputes. In the case of family law disputes the probability of different governing law being applied is even bigger since courts of some countries apply the law of the forum for those disputes. With the constant increase of the foreign laborers who migrate into Korea, marry Korean women and settle in Korea and of the foreign women who immigrate into Korea for marriage, the issue of international jurisdiction to adjudicate is getting more important and urges us to introduce more precise criteria. Against this background, the author makes legislative suggestions for the future jurisdictional rules on divorce and other marriage related matters. More concretely, the author discusses the following issues: the position of the prior Private International Law Act of Korea and court precedents thereunder (Chapter Ⅱ.), the position of the current Private International Law Act of Korea and court precedents thereunder (Chapter Ⅲ.), comparative law analysis of the “Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000” (Brussels Ⅱbis), the Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit of Germany (FamFG) and the Family Procedure Act of Korea (Chapter Ⅳ.) and the direction of Korea’s future legislation (Chapter Ⅴ.). The author also briefly discusses and makes some comments on the 1975 Decision of the Supreme Court of Korea which is believed as having established the principle of “actor sequitur forum rei” in family law disputes and the 2006 Decision of the Supreme Court of Korea which was the first Supreme Court of Korea after the entry into force in 2001 of the current Private International Law Act of Korea. The author suggests that Korean legislators should divide family law disputes into for categories, i.e. ① marriage related disputes, ② parent-child related disputes, ③ support or maintenance related disputes and ④ custody related disputes, and introduce detailed jurisdictional rules on each of the four categories respectively since the interests of the related parties vary from one category to another. The author also suggests that Korean legislators should fully consult the international jurisdictional norms established by the Hague Conference on Private International Law (e.g. the Child Protection Convention, the Adults Protection Convention and the New Maintenance Convention) and the regional jurisdictional norms of the European Union (e.g. the Brussels Ⅱbis and the Maintenance Regulation) so that the future jurisdictional rules of Korea could be consistent with those norms as much as possible.