부양사건과 성년후견사건의국제재판관할권에 관한 입법론

1. Korea Private International Law(hereinafter “KPIL”) Art.46, which was mainly accepted the purport of the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations in the revision of KPIL in 2001, provides the law of habitual residence of the creditor in principle. This Hague Convention of 1973 was replaced by the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations to be modernized. Also, the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance was concluded by preferring more favorable treatment of creditors. We can find that the rules on indirect jurisdiction in the Hague Convention of 2007 are provided as the rules of direct jurisdiction in Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Court of Korea shall have jurisdiction for the place where the defendant is habitually resident, or where the creditor is habitually resident. It also shall have jurisdiction to entertain proceedings concerning either the status of a person or parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality. If a decision is given in Korea where the creditor is habitually resident, as long as the creditor remains there, Court of Korea shall have jurisdiction on proceedings to modify the decision or to have a new decision given by the debtor, unless it is based on agreement on jurisdiction or jurisdiction by appearance except the case where appearance was entered to contest the jurisdiction. 2. KPIL Art.4 provides for the international jurisdiction and the applicable law on incompetence and quasi-incompetence. It has been interpreted as exceptional jurisdiction for Court of Korea. KPIL Art.48 provides for the applicable law on guardianship. The Hague Convention of 13 January 2000 on the International Protection of Adults permits the concurrent jurisdiction considering that adults have substantively relation to the national State and certain property other than in the State of habitual residence, etc. As shown in this convention, it is undoubtedly desirable that the protection of the adult should be ensured by the authorities of the State of the habitual residence. Court of Korea shall have jurisdiction in principle for the place where the adult is habitually resident to take measures directed to the protection of the adult's person or property. It also shall have jurisdiction when the adult is a Korean, and when the property of the adult is located in Korea if the measures for the adult would be effective there. On the other hand, the rules on jurisdiction above shall basically apply to the powers of representation granted by an adult.