외국법이 적용되는 소송에서 가지급물반환의무의 준거법과 관련한 몇 가지 문제점– 대법원 2015.2.26. 선고 2012다79866 판결을 중심으로 -

Supreme Court Decision 2012da79866 is a ruling in relation to the governing law of the restoration obligation of provisional execution in court proceedings that English law shall govern. Though the Supreme Court classified the restoration obligation of provisional execution as unjust enrichment, it refused to apply the second paragraph of Article 31 of the Private International Law and applied Korean law for reasons that it is a statutory obligation recognized by the Civil Procedure Act for justice and the provisional execution was made by the court’s order. However, this ruling has four errors as follows. First, the Supreme Court classified the restoration obligation as ‘a statutory obligation recognized by Civil Procedure Act’ and ‘made by the court’s order’ but it jumped to the conclusion that the obligation had substantive character without considering whether the obligation should be classified as procedural or substantive. Second, the Supreme Court made a mistake of considering application of the second paragraph of Article 31 of the Private International Act without considering application of the first paragraph of the same article despite foreign elements existed in the case regardless of the first paragraph and the second paragraph. Third, the decision made an error to apply Korean law before designating the governing law in accordance with the Private International Act. Fourth, the court’s order of the provisional execution is based on the legal relationship between the parties that exited before the order was given and does not create a new legal right for the sake of the plaintiff, therefore the governing law of the relationship between the parties shall also govern the restoration obligation.