혼인관계사건의 국제재판관할에 관한 입법적 제안과 유럽재판소 및 독일 판례의 시사점

The international marriages have been a common aspect in korean society already for a long time. The conflicts in family affairs with foreign elements today happen queit more frequently in comparison with the past. A typical kind of these conflicts is the international divorce. In reference to the international divorce the international jurisdiction is a important issue. Because it is decided according to the regulations of the international jurisdiction which country have a right to judge a case of the family affairs with foreign elements. Not only the geographical distance and the language in court but the procedural law and the substantive law are also decided according to the international jurisdiction. In addition the international jurisdiction in family affairs with foreign elements have a distinctive feature that it is considered first after a litigation, because it can be not solved mostly with a contract, a international convention or a customary international law. The legal provisions about the international jurisdiction should be clear and detailed with this reason, so that the parties could understand and foresee the process and the consequences easily. However the korean international private law has only one provision, Art. 2, as a general rule about the international jurisdiction without clear and detailed provisions for the family affairs with foreign elements. This Article have a intent to extract clear and detailed provisions for the international jurisdiction in the matrimonial conflicts like international divorce. For this ‘the Brussels II bis regulation’ of EU and ‘the german FamFG(the law for the litigation in family affairs and in affairs of the jurisdiction over non-contentious matters)’ are introduced and analyzed. After that the legal issues after the legislation about the international jurisdiction in family affairs with foreign elements are previewed with judgments of European Court of Justice and german courts.