계약관할로서의 의무이행지관할의 개정방안

Article 8 of the Civil Procedure Act should better be amended, in the first place, as toprovide for the special jurisdiction for contracts at the place of performance, applicableboth to international jurisdiction and venue. Such jurisdictional rule with the doublefunctionality will offer a framework upon which we could build doctrinal refinementsthat pertain coherently to international jurisdiction and venue alike, as long as suchcoherence makes sense. In the meantime, the current drafting work in the Ministry ofJustice is premised on the idea of creating an independent set of rules for internationaljurisdiction alone, while leaving the current rules of venue intact. Considering thisbackground, this paper discusses a possible reform of contract jurisdiction solely in thecontext of international jurisdiction. Nevertheless, the discussions and suggestions advancedin this paper will also be valid as a proposal for reform of specific venue rule forcontactual disputes. It is because the doctrinal issues and practical concerns are largelyshared in the two areas of special jurisdiction and venue for contractual relationship,although the practical significance of international jurisdiction excels that of venue,especially in Korean context. In discussing a possible legislation for contact jurisdiction, one should carefully examinethe relevance of the relatively recent Supreme Court decision of 29 May 2008, 2006da71908,71915 (Sungwoo Enterprise/Miho Japan), especially the changes it brought to the case law. On the one hand, this precedent has newly adopted, along the line of the autonomousdefinition of the place of performance, the notion of acknowledging contact jurisdictionat the place of performance of the obligation that is characteristic to a contract. On theother hand, this post-2001 precedent refused to recognize the relevance of pre-2001 caselaw, presumably on the premise that the introductory provision of Article 2, newly insertedin 2001, which declares the fundamental ideas and methods governing internationaljurisdiction, brought a thorough change of the whole law of international jurisdiction, soas to make the earlier case law unworthy of reference any more. In this background, thelegislator is expected to restore the longstanding rule of contact jurisdiction and thereby invite further doctrinal refinements, either through doctrinal elaboration in the academiaand the courts or by adding a few paragraphs that statutorily define the “place ofperformance” criterion in further detail. The key issue for defining the “place of performance” is whether to follow its definitionin the applicable substantive law, or to establish an “autonomous” notion of it for thespecial purpose of determining contact jurisdiction (and venue). Doctrinally, an autonomousdefinition is evidently the better solution. But it is still an open question whether astatutory language should be inserted to approve this procedural definition. It is submittedthat, considering the Supreme Court has already made a move in the same direction inits 2008 decision, it might be better to leave the choice from substantive or proceduraldefinition to the courts and the academia, rather than legislatively intercepting this issueat this point of development. Another important issue is whether to concentrate contract jurisdiction at the place ofcharacteristic performance, regardless of which contractual obligation is being asserted asthe basis of the claim. In this regard, Article 6 of the Preliminary Draft for the HagueJudgments Convention (1999) might appear to be a useful model. However, the subdivisioninto three categories of contacts as adopted in the Hague Preliminary Draft will createanother issue of characterization between the three subcategories. This accompanyinginconvenience should also be considered in evaluating the usefulness of such exemplarydefinition of characteristic performance. In this connection, this paper has raised, as thefirst alternative proposal, a modest argument in favor of a provision that simply refersto the term “characteristic performance” itself, although the present writer believes itwould be even better to leave this issue to the academia and the courts, at least in theKorean setting, where this issue has not been discussed extensively. Meanwhile, there is no doubt that a secondary obligation, e.g., obligation to paydamages to the aggrieved party, cannot itself form the basis of defining the place ofperformance. In other words, the contract jurisdiction should always be defined by theplace of performing the primary obligation, and the contract jurisdiction thus defined alsoapplies to a secondary obligation. This is doctrinally clear and deserves a consensus amongfuture writers, but a concern is created by one lower court precedent that opined in theopposite. A concise reference to the primary obligation in the contract jurisdiction provisionwould suffice in legislatively excluding secondary obligations in this context and annihilatingthis lower court precedent. This constitutes the second alternative proposal of the presentwriter. One might also attempt to include a legislative reference to the formal requirementsapplicable to an agreement on the place of performance. A proper solution will be to require the same formal requirements as the nonexclusive prorogation. But it remains tobe discussed whether this solution should be statutorily provided or better be left tointerpretation. It is submitted that the latter option could be a wiser one, considering thecurrent state of academic discussion on this issue. Another delicate issue is the relationship between the place where the obligation“should” be performed and the place where the tender of delivery was “in fact” made. The answer to this issue may differ, depending upon how exactly the rationale for contactjurisdiction should be understood. It is submitted that this issue should also better beleft to future discussions. Another practical issue in drafting a contract jurisdiction rule is whether the proposedlegislation should include an explicit language on the scope of application of the rule ofcontract jurisdiction. While the present writer does not deny the value of such statutorylanguage, this issue could also be left to the writers and the courts, for the sake ofconciseness. Finally, the legislator is strongly counseled to reconsider Article 467 para. 2 of theCivil Code which requires performance at the creditor’s domicile. This provision shouldbe revised to require performance at the debtor’s domicile. This will pave the way for asmooth adoption and development of the procedural definition of the place of performancein Korea.