국제민․상사분쟁해결에 관한 동아시아법의 현황과 미래 -조화와 통일의 관점에서-

Personal and material exchanges within Northeast Asia, consisting of Korea, China and Japan (the “Region”) have already reached a significant level, and are expected to continue the steady increase over the long term. Although disputes among the Region’s companies are usually resolved by litigation or arbitration abroad in the UK or Singapore, some of those disputes are resolved by litigation or arbitration in the Region. In this article, the author discusses the current status and future of the East Asian Laws on international civil and commercial dispute resolution from the view point of future unification and harmonization. The focus is on the unification and harmonization of the Region’s private international law (the “PIL”) in its narrow sense. The new Private International Law Act of Korea replacing its predecessor came into force in July of 2001; the “Act on the General Rules of Application of Laws” of Japan replacing its predecessor became effective in January of 2007; the “Law on Application of Laws to Civil Matters involving Foreign Elements” of the People’s Republic of China, which has been promulgated for the first time, took effect in April of 2011. The three PIL acts of the Region are similar in many aspects. Now it is time for the PIL experts in the Region to begin more systematic efforts to unify or harmonize the PIL rules of the Region. In the short term, we should make efforts to unify or harmonize the PIL rules in its broad sense. In the process, we should make use of the rules of the Hague Conference on Private International Law. We should also try to strengthen the cooperation in the Region based on the PIL rules of the Hague Conference. In the long term, we also need to unify or harmonize the substantive civil and commercial law in the Region. In that process, we need to make use of the rules of the UNCITRAL, UNIDROIT and the International Chamber of Commerce. More specifically, the author deals with the following issues: the necessity of unification or harmonization of the Region’s PIL rules (ChapterⅡ), an overview of the Region’s current PIL rules in its narrow sense (Chapter Ⅲ), the principal similarities and differences of the Region’s PIL rules in its narrow sense (Chapter Ⅳ), the method of unifying or harmonizing the Region’s PIL rules in its narrow sense (Chapter Ⅴ), the limits of the unification or harmonization of the Region’s PIL rules in its narrow sense, and the ways to overcome such limits (efforts to resolve disputes by litigation in the Region) (Chapter Ⅵ), the unification or harmonization of the Region’s PIL rules in its broad sense (Chapter Ⅶ), the unification or harmonization of the Region’s international commercial arbitration rules (Chapter Ⅷ) and concluding remarks (Chapter Ⅸ). Although the political relationship among Korea, China and Japan is troublesome at the moment, the author believes that such instability will not last long. The author hopes that the PIL experts in the Region could contribute to the achievement of the so-called task of the era, i.e., “the mutual prosperity in the Region and the Region’s cooperation on the international stage”. The author also hopes that in that process Korean PIL experts could carry out their roles worthily.