외국판결 및 중재판정 승인거부요건으로서의 공서위반

For the foreign judgements or arbitral awards to be recognized and enforced in Korea, such recognition and enforcement should not be contrary to the public policy of Korea. That is, if the contents of the judgements or awards are contrary to the basic social orders or moral values that tie Korean society together(substantive public policy), or the procedures whereby such judgements or awards were formulated are contrary to the basic principles that form the backbone of the due process in Korean legal system and therefore are anticipated to be observed (procedural public policy), the recognition or enforcement of such foreign judgements or arbitral awards would be denied in the Korean court. This public policy exception is apparently countervailing to the principle of the prohibition of révision au fond(conclusiveness principle) and has an important meaning for the recognizing state. In principle the concept of the public policy should be interpreted strictly, and the review and examination to be conducted by the recognizing court in determining the exception should also be allowed restrictively. The exact wording adopted in the Civil Procedure Act to indicate public policy in relation with the recognition of the foreign judgements is “good morals and other social order”. The same wording is adopted in other laws and regulations of Korea as well. The New York Convention directly used the term “public policy” while this was translated into “public orders” in Korean version of the convention. However, the concept of the “public policy” employed in the Civil Procedure Act or the New York Convention should be basically the same and be more strictly interpreted than others such as that in the Civil Code. The public policy here should mean the international public policy rather than the domestic or internal public policy of Korea. In this regard, it is clear that if the foreign judgements or arbitral awards are against Korean mandatory laws, that alone would not justify the public policy exception. However, if the foreign judgements or arbitral awards are against the international mandatory rules, whether such international mandatory rules would constitute the international public policy should be reviewed case by case. Since there are provisions dealing with certain important procedural irregularities in the Civil Procedure Act or the New York Convention in relation with the recognition and enforcement of foreign judgements or arbitral awards, the procedural public policy concept would play more supplementary and comprehensive role to fill in the gap, but in more cautious and abstained manner. The basic procedural principles that should be observed will be found by the Korean court but should also be justifiable as the international public policy. Lastly, the public policy exception should be reviewed also in the context of the proximity to the territory(Inlandsbeziehung). If the proximity of the case to the recognizing state is low, the chance for the public policy exception to be introduced would also be low. However, violation of the ordre public universel would not need a proximity to the recognizing state to constitute the public policy exception.