재산관계 특별관할에 관한 한국 국제재판관할법의 개정방안 -일반조항의 역할과 계약관할, 불법행위관할의 시론적 검토-

Currently Korean law contains only a handful of statutory sources on international judicial jurisdiction. While Article 2 of Private International Law states the general goal and provides a basic guidance on law-finding, there are no other provisions on general principles, and express statutory provisions on international jurisdiction are scattered and few in number. This situation imposes a significant burden on the courts, because they have to rely routinely on the process of analogy from regional jurisdiction or venue rules. Theoretically, such law-finding method might have provided a solid basis on which Korean law of international jurisdiction can be built. Indeed, many continental European laws have tended to legislate a single set of jurisdiction rules and make them function as both international and internal (i.e., regional) jurisdiction rules. However, this doctrine of double functionality has been difficult to operate as effectively in Korea as in those continental European countries, because Korean venue law contains several some statutory provisions that are so peculiarly improvised solely for internal jurisdiction that they cannot properly supply a source of regulating international jurisdiction. In this regard, Korean courts have been required to more selective in identifying those venue provisions that are suitable for analogous application to international jurisdiction issues, and relatively more willing to differentiate international jurisdiction rules from corresponding venue rules in the course of analogy. This law-finding process inevitably resulted in a relatively high level of uncertainly and also suboptimal specification of details. These practical defects proved difficult to overcome, either with the aid of the doctrine of reverse analogy or Article 2 of Private International Law. Indeed, they were natural side-effects of such heavy reliance on judicial lawmaking, which is innately a slow and incremental process. Here lies the urgent necessity and value of legislatively introducing a system of express provisions on international jurisdiction. In creating a set of express provisions in international jurisdiction, an important question is whether Korean legislator should retain Article 2, which the legislator created in 2001, at least partly as a temporary measure, while largely dispensing with express provisions on specific matters as well as other questions pertaining to general principles. The majority opinion among scholars appears to support an unmodified preservation of Article 2 within the upcoming legislation. However, it is submitted that such legislative inaction on the role of this highly abstract and possibly almighty general clause is likely to cause unintended negative consequences. It might induce the courts to invoke Article 2 any time when they apply specific rules and other provisions of general principles, thereby placing an undue emphasis on Article 2 rather than being fully engaged in detailed interpretation of independent rules and individual criteria belonging to general principles. In effect, it will not be very different from preserving the existing practice of seriously considering Article 2 in each individual case. It will diminish the practical meaning of legislating concrete rules. Moreover, the retention of Article 2 para. 1 might cause a revival of the interpretation of Article 2 para. 2 as an independent basis of jurisdiction, as the Seoul High Court opined in the hpweb.com case. In statutorily providing contract jurisdiction, the central question is whether place of performance should be understood as a substantive law or procedural law concept. One way to legislate would be to leave this issue to the interpretation and create a concise provision that says “a case of contract shall be subject to the international jurisdiction of the country of the place of performance.” It would also be possible to add the phrase “of the obligation in question” at the end of this sentence. Meanwhile, it is also possible to make clear that the new legislation adopts an autonomous procedural definition of the place of performance. In this latter case, the legislation may go on to make a statutory definition of the place of performance for each type of contract by way of focusing on specific performance. Tort jurisdiction will have to include a comprehensive provision for place-of-tort jurisdiction. Further, the legislator will have to decide whether to provide a special rule for each type of special tort. If we should dispense with such special rules for special torts, it would be possible to simply provide for tort jurisdiction in the “place of tort”, expecting the ubiquity principle would be maintained as has been in judicial opinions and doctrines in the past. This legislative technique has flexibility that could accommodate possible differentiation for special torts. Additionally, we would also need to consider whether to provide foreseeability as a general condition for admitting place-of-harm jurisdiction. This legislative technique could be a means to properly deal with various special torts, especially product liability and infringement of personality rights on internet. On the other hand, however, flexibility will be accompanied by uncertainty, if we attempt to manage with a simple place-of-tort rule. Moreover, the traditional status of place-of-tort rule could be understood to have lost its solid authority in the existing Korean law, due to the judicial tendency of treating Article 2 as an independent, self-fulfilling general clause since 2001. If this suspicion should have a sufficient basis, the legislator could consider, as a possible option, the idea of concretely mentioning place of harmful behavior and place of harm in the rule stating place-of-tort jurisdiction. If the legislator should decide to do so, it should further be expected to separately provide for special torts, particularly to specify the situations where place-of-act jurisdiction is inappropriate (e.g., so-called market torts) and where place-of-harm jurisdiction should be treated more carefully (e.g. diffusive tort). To be sure, this concern could also be served by requiring foreseeability as a general condition for place-of-harm jurisdiction, as mentioned above.