영국법이 준거법인 한국 회사들 간의 선박보험계약과 약관규제법의 적용 여부 - 대상판결: 대판 2015. 3. 20., 2012다118846(본소), 2012다118853(반소) -

General contract terms are widely used in international transactions. However, there was not much discussion on the private international law issues involved in such transactions. In an article published in 2003 the author expressed the view that the General Contract Terms Control Act of Korea does not constitute so-called internationally mandatory rules, which should be applied irrespective of the law applicable to the contract. Later the Supreme Court of Korea supported such view in its judgment rendered in August of 2010. The author welcomed the judgment of the Supreme Court but added that the Supreme Court should have discussed the issues more thoroughly. Although some scholars criticized the judgment of the Supreme Court of Korea of September 9, 2010 Docket No. 2009Da105383 because it is inconsistent with the judgment of the Supreme Court of August 2010, the author expressed the view that they are not inconsistent with each other since the Supreme Court judgment of September 2010 is concerned with a purely domestic insurance contract, whereas the Supreme Court judgment of August 2010 is concerned with an international insurance contract. The recent judgment of the Supreme Court of Korea of March 20, 2015 Docket Nos. 2012Da118846 (Original Claim) and 2012Da118853 (Counter Claim), which is reviewed in this article (“Supreme Court Judgment”), reconfirms that the General Contract Terms Control Act does not constitute so-called internationally mandatory rules, and that there is no conflict between the Supreme Court Judgment (and accordingly, the judgment of the Supreme Court of August 2010) and the Supreme Court judgment of September 2010 where a purely domestic case was concerned. The author welcomes the Supreme Court Judgment. The private international law issues involved in the case at hand are as below. First, is English law the governing law of the ship insurance contract in this case? Second, is the General Contract Terms Control Act of Korea excluded when the governing law of the ship insurance contract is English law? Third, is the Supreme Court Judgment in conflict with the judgment of the Supreme Court of September 2010 which held that Article 3 of the General Contract Terms Control Act is applicable to an insurance contract governed by English law. In order to solve these questions the author deals with the following issues: Meaning and effect of choice of governing law of an international contract (Chapter Ⅱ.); Is the General Contract Terms Control Act so-called internationally mandatory rules? (Chapter Ⅲ.); Choice of foreign law in a purely domestic contract (Chapter Ⅳ.); Some issues of marine insurance contract (Chapter Ⅴ.); How to overcome the unreasonable outcome resulting from the application of the English Marine Insurance Act (Chapter Ⅵ.); and, Whether the conclusion of the Supreme Court Judgment on the governing law is also applicable to the jurisdiction clause contained in the general contract terms (Chapter Ⅶ.). Thanks to the Supreme Court Judgment much of legal uncertainty surrounding the use of general contract terms in international transactions has been removed. The issues remaining after the Supreme Court Judgment could be summarized as below. In a short term perspective, the following issues should be clarified: the conditions under which a choice of law clause in general contract terms can be made; whether the conclusion of the Supreme Court Judgment is also applicable to the jurisdiction clause contained in general contract terms; and, legal consequence of a choice of foreign law for a purely domestic contract under Article 25(4) of the Private International Law Act and the objective criteria by which we can decide whether a contract has an international element. In a long term perspective, we need to consider whether the current position of the Korean Supreme Court on the legal nature of English governing law in the institute cargo clause should be maintained, and whether the position of the General Contract Terms Control Act in dealing with general contract terms in international transactions can be justified. We need to improve the current situation where English law has overwhelming power as law applicable to insurance contracts. If we have to accept English law as the governing law in international insurance contracts, we will need to take a more creative attitude, instead of blindly following the English law and precedents imposed by English legislators and English judges. In addition, the author believes that Korean companies engaged in international transactions should try to choose Korean law as the applicable law, and if they have to accept a foreign law as the governing law, they should try to fully understand the legal consequence of such choice and to avoid any disadvantages which might be caused by such choice.