손해배상을 명한 외국재판의 승인과 집행: 2014년 민사소송법 개정과 그에 따른 판례의 변화를 중심으로

According to the Civil Procedure Act, foreign judgments that satisfy the requirements for recognition automatically have res judicata effect and other effects (except for enforceability) in Korea. However, in order to enforce a foreign judgment, an enforcement judgment (or exequatur) must be obtained from a Korean court. Art. 217 of the Civil Procedure Act on the recognition of foreign judgments and Arts. 26 and 27 of the Civil Execution Act on the enforcement of foreign judgments have been amended in May of 2014, and Art. 217-2 on the recognition of foreign judgments ordering payment of damages has been newly inserted. This legislative change is a result of the National Assembly’s codification efforts to protect Korean companies from unjust decisions of foreign courts as exemplified by E.I. DuPont de Nemours and Co. v. Kolon Industries Inc. et. Al. (2011). Recently the Supreme Court of Korea (“KSC”) has rendered decisions on Art. 217-2. The implication of the court’s holding in those decisions is not entirely clear. However, depending on it, the rationale behind the introduction of Art. 217-2 could be undermined, and the Korean companies the Korean legislators sought to protect may end up in a more unfavorable position than they have been before the introduction of Art. 217-2. In this article, the author aims to offer a correct interpretation of Art. 217-2 and to assess the court decisions on Art. 217-2. With regard to the legislation, the legislators’ original intention has not been clearly expressed since the text of Art. 217-2 is too general and similar to Art. 271(1)(iii) on public policy. As for the court decisions, it should be noted that, in the past, the lower courts tended to limit the recognition and enforcement to a lesser amount if the amount of damages awarded by foreign courts were deemed grossly excessive. However, the recent KSC decisions after the introduction of Art. 217-2 do not show clearly whether the KSC supports the holding of the above lower courts or not. Even though the author supports the view that the foreign judgments ordering compensatory damages should in principle be recognized in Korea, the author also believes that the Korean courts should be allowed to limit, by reference to the public policy clause, the recognition and enforcement to a lesser amount when the amount of compensatory damages awarded by foreign courts are grossly excessive. Although it may be a bit premature, the National Assembly should consider amending Art. 217-2 for better clarity because it is now almost certain that Art. 217-2 cannot achieve its goal of protecting Korean companies from unjust decisions of foreign courts. More concretely, the issues are discussed in the following order: first, the review and assessment of Art. 217 and Art. 217-2 (Section II); second, the position of the court decisions rendered after the introduction of Art. 217-2 (Section III); third, a legislative proposal on the amendment of Art. 217-2 (Section 4); fourth, the problems of Art. 32(4) of the Private International Law Act of Korea and a legislative proposal on the amendment thereof (Section 5); and fifth, concluding remarks (Section 6).