남북한 주민 간 법률관계의 올바른 규율: 광의의 준국제사법규칙과 실질법의 특례를 중심으로

The increase of exchanges between South Koreans and North Koreans has led to the creation of more diverse legal relationships between them. In that context arise various legal issues that are analogous to private international law issues such as international jurisdiction, applicable law, recognition and enforcement of foreign judgments, and international judicial cooperation. If we regard North Korea as a part of South Korea, we can deal with legal relationships between South and North Koreans as domestic legal relationships within South Korea. On the contrary, if we regard North Korea as a foreign country, we can deal with legal relationships between South and North Koreans as ordinary international legal relationships like those between South Koreans and the Japanese. However, both approaches are not entirely satisfactory, and we are in need of more appropriate solutions. Hence in this article the author delves into the legal relationship of private law nature between South and North Koreans. The author pursues the following three objectives: First, the author makes efforts to suggest concrete inter-regional law rules based upon his approach considering the legal relationship between South and North Koreans as inter-regional law matter rather than domestic law matter or private international law matter. Second, the author proposes that we produce special substantive law rules in order to obtain just results in dealing with the actual cases, since the inter-regional law approach will lead to the application of either South Korean law or North Korean law. Good examples of such rules are the articles setting forth (i) the special treatment of divorce between North Koreans who moved into South Korea and North Koreans left behind in North Korea under the “North Korean Refugees Protection and Settlement Support Act” and (ii) the special treatment of double marriage and management and export of estate under the “Act on Special Cases Concerning Family Relationships, Inheritance, etc. between Residents in South and North Korea” (“Special Family Act”). Third, the author briefly explains the articles deleted from the draft of the Special Family Act. While the current Special Family Act only includes Article 4 on jurisdiction, its draft had originally contained other articles dealing with inter-regional law issues such as applicable law, recognition and enforcement of North Korean judgments, and judicial cooperation. It is a pity that those articles were deleted in the final text, but the author still believes that we should draw the same conclusions as those under the articles. Keeping these three objectives in mind, this paper discusses the following issues: private international law and inter-regional law (Ch. Ⅱ.), status of North Korea and the viewpoint looking at the legal relationship between South Koreans and North Koreans (Ch. Ⅲ.), jurisdiction (or inter-regional jurisdiction)(Ch. Ⅳ.), law applicable to various legal relationships and special rules governing substantive law issues (Ch. Ⅴ.), recognition and enforcement of foreign judgments and North Korean judgments in South Korea (Ch. Ⅵ.), and judicial cooperation (Ch. Ⅶ.). So far Korean scholars have been paying attention to only Articles 3 and 4 of the Korean Constitution in determining the law applicable to legal relationships between South and North Koreans. However, the author underlines that we should also consider Article 11 of the Korean Constitution setting forth the equality principle since that could be viewed as the consitutional basis of the Private International Law Act of Korea.