준거법에 관한 국제사법의 2001년 개정과 후속 판례의 회고

Korean Private International Law went through a thorough reform in 2001, with a focus on choice-of-law rules, and it still represents the major characteristics of Korean private international law today. The reform in 2001 reflected one-century-old changes abroad. There were profound changes in both general principles and rules in specific areas. As a matter of general principles, the 2001 amendment took into account public law elements in substantive law in a more conscious and systematic manner, and also expanded the use of flexible method of connection and pragmatic approaches. There were also significant changes inn stipulating specific rules. In the area of obligations, the stronghold of locus regit actum partially gave way to a variety of alternative approahes, which even include the use of a personal connecting factor. In personal, family and succession matters, the nationality principle was partly weakened and replaced by the residence principle. Positive changes have also taken place in case law. Notably, the hidden renvoi is now recognized; the courts growingly engage in a detailed investigation of foreign applicable laws; judicial precedents on overriding mandatory rules have been handed down by the courts. However, one may witness some confusion in the conflict of laws in contract. In regard of the status of the presumptive party autonomy, opinions are divided between the case law and the majority of scholars. Realistically, this difference is likely to persist, because this divergence of opinions is indeed related to the question of how to evaluate the current Article 26, consisting of a presumption and a restatement of a general principle.