외국판결 및 중재판정 승인요건으로서의 상호보증

The ultimate goal of international litigations and international commercial arbitration lies in the enforcement of the judgments and arbitral awards. This is the issue of the recognition and enforcement of foreign judgments and foreign arbitral awards. Recognition and enforcement of foreign arbitral awards are dealt with in accordance with the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York Convention”). It is thought that there is reciprocity between the New York Convention signatories, by allowing the enforcement according to the reciprocity reservation of the Convention. The provisions of the reciprocity reservation of the New York Convention are expressions of mutual warranty. On the contrary, there is no global instrument regarding the recognition and enforcement of foreign judgments. After all, the recognition and enforcement of foreign judgments are addressed based on the domestic law of each country. In Korea, Article 217 of Civil Procedure Act (“CPA”) prescribes the requirements for the recognition of the foreign judgment. Article 39 of the Arbitration Act, Article 217 of the CPA and Articles 26 (1) and 27 of the Civil Execution Act apply to the recognition or enforcement of a foreign arbitral award which is not subject to the New York Convention. This paper focuses on reciprocity, one of the requirements for recognition of foreign judgments. First, this paper explores legal issues concerning mutual assurance from the viewpoint of the general theory of the mutual guarantee. With respect to the degree of reciprocity, I opine the equality test of major requirements, and with regard to the partial guarantee of reciprocity, I hold a positive view. As regards the issue of whether or not the reciprocity requirement should be maintained, I am with the position that it is somewhat difficult to abolish the requirement right away; thus, I maintain that currently a relaxed interpretation is required. As for Korean court’ decisions, I observe the development from the test of equal or equivalent requirements to the equality test of major requirements, and the latter test is Supreme Court's current position. Next, I research whether there is reciprocity between Korea and foreign countries. In accordance with Korean court’s decisions, there is reciprocity as between Japan, Germany, New York and Minnesota in the United States. As for Australia, a Korean court once judged that there was no reciprocity between Korea and Australia, but currently, it may be no problem to say that there is reciprocity between Korea and Australia, since Australia included Korea in the target list of reciprocity countries. The relationship between China and Korea, there is a case that a Korean court acknowledged China’s judgment, but there is a case that a Chinese court did not recognize a Korean court’s judgment; therefore we should pay a close attention to the trend of practices of both countries’ courts in the future. The issue of reciprocity is the issue of legal policy. There is an aspect that reciprocity significantly limits an individual’s right. Accordingly, it is reasonable to take the direction of abolishing the requirement for reciprocity in the long run. However, from the viewpoint of significant differences as to the reciprocity requirement among countries, at the moment, it is desirable to employ a flexible interpretation in its application. Ideally, the most desirable thing is to reach a global agreement as to this issue, such as the New York Convention. But at this time, we may observe that the issue of reciprocity of the recognition and enforcement of foreign judgments will be resolved according to the Convention of 30 June 2005 on Choice of Court Agreements, if the Convention comes into force internationally.