혼인관계사건의 국제재판관할－이혼사건을 중심으로－

International jurisdiction in matrimonial cases is an area where diverse legislative models flourish. On the one hand, most national legislations in Europe lay an equal emphasis on nationality and domicile (or habitual residence). On the other hand, Brussels II bis Regulation places more weight on habitual residence compared to nationality. This tendency reaches its extreme in Japan, of which the case law and one line of legislative attempts have heavily relied on the defendant's forum as defined by his or her domicile (or habitual residence). In this background, Korean law has experienced a serious confusion in this area. The case law has experimented with a large spectrum of solutions, ranging from an approach focusing on the defendant's domicile (or habitual residence) to a totally different approach that takes any one spouse's nationality or domicile (or habitual residence) seriously. Such complicated state of law is exacerbated by the divergence between the Supreme Court and lower courts in their case law. Commentators' views, representing various ideas, have failed to exert any influence on the judiciary. A legislative solution in this regard will help overcome this state of law and promote certainty and predictability, as well as reducing the energy consumed on this preliminary issue of international jurisdiction. However, legislation is not the only remedy. Even a legislative reform should be preceded by a full－fledged review of interpretive doctrines. Legislative attempt should be made as a means of perpetuating the doctrinal findings. Due consideration should also be given to the practical importance of appropriate legislative technique. The following guidelines appear appropriate in interpreting as well as legislating the standard of international divorce jurisdiction. First, in defining the residence－based contacts between the spouse and the forum, it would be wiser to adopt both domicile and habitual residence, rather than attempting to choose one over the other. Second, in the case where the defendant spouse appears to have no habitual residence in any country, the priority should be placed on the attempts to properly define the conditions for acquiring and changing a habitual residence, rather than hastily considering a possibility to invoke subsidiary jurisdictional bases of lastly held domicile and simple residence. Third, there should be no difficulty in upholding jurisdiction in matrimonial matters based on both spouses' habitual residence or domicile, or the defendant spouses's habitual residence or domicile. On the other hand, some appropriate limitations should be attached to the availability of jurisdiction based on the plaintiff spouse's habitual residence or domicile. But the position of the Supreme Court decision of 22 July 1975, 74meu22 appears to be excessively cautious in basing the jurisdiction on the plaintiff spouse's domicile or habitual residence. The academia and the courts are expected alike to devise a list of the types of additional contacts that should accompany the plaintiff spouse's habitual residence or domicile in the forum. This list of situations should be sufficiently diverse so as to preserve the usefulness of this head of jurisdiction. In the legislative context, the drafter may also be interested in requiring a certain period of continuous residence in the forum, as under the Brussels II bis Regulation. Fourth, nationality－based jurisdiction should be upheld, even where one spouse alone has the nationality of the forum state, regardless of that spouse is the plaintiff or the defendant in the lawsuit. In the legislative phase, the legislator might be interested in upholding jurisdiction based on the plaintiff spouse's nationality in some limited types of situations that present some additional contacts. It is submitted that if such legislative approach should be adopted, the legislator should be ready to list diverse types of situations. Fifth, subsidiary jurisdiction over ancillary causes and jurisdiction over counterclaim should also be acknowledged in divorce cases. Legislation in this area should also include an express provision on these heads of jurisdiction. Sixth, there appears no reason to apply appearance－based jurisdiction to divorce cases, and the applicability of this head of jurisdiction could be made clear with an express statutory language. Seventh, a careful analysis of interests is required in discussing about the applicability of general rules on jurisdiction over related actions, jurisdiction based on appearance and jurisdictional agreement. No consensus has yet been formed among scholars on these matters, although the case law appears in favor of the admissibility of jurisdiction based on appearance. It is submitted that these matters should better be left to interpretation, rather than being resolved legislatively.