소비자계약 및 근로계약 사건의 국제재판관할의 일반적 규정 방식에 대한 비판적 검토

We are facing the internationalization of business activities, free movement of workers, and the development of international consumer contracts. As a result, a court commonly has to address international jurisdiction over consumer contracts and over individual contracts of employment. By adopting the approach of the Brussels I Regulation, the Korean Private International Law was reformed to provide an advanced rule for determining jurisdiction over consumer contract cases and over individual employment contract cases in 2001. The 2001 Korean Private International Law contains special rules of jurisdiction for the benefit of the consumer and the employee as a weaker party. The Korean Private International Law is aligned with the Brussels I Regulation in providing, regardless of locale of connecting factors, for jurisdiction over consumer contract cases and over individual employment contract cases. It has been understood that the approach reasonably balances interests between a local consumer and a foreign trader, a local trader and a foreign consumer, a local employee and a foreign employer, and a foreign employee and a local employer, and does not discriminate them. However, it should be noted that this approach has practical implications in establishing common rules on jurisdiction in a community such as the European Union. On the other hand, the Korean Private International Law does not intend to unify the rules of conflict of jurisdiction across member states in a community, and thus has only to provide for jurisdiction of Korean courts instead of providing for jurisdiction regardless of locale of connecting factors. The Korean Private International Law will be refined again by revisiting it in 17 years with respect to jurisdiction. The amendment bill sets out special rules of jurisdiction of Korean courts only with respect to consumer contracts but special rules of jurisdiction, regardless of locale of connecting factors, with respect to individual employment contracts. The bill mistakenly adopts the approach of the Brussels I Regulation for jurisdiction over individual employment contracts. The bill should provide for special rules of jurisdiction of Korean courts only to protect the consumer and the employee in consumer contract cases and individual employment cases respectively. It remains to be seen whether the Korean Private International Law will be revisited to set out special rules of jurisdiction of Korean courts only for the benefit of the consumer and the employee taking into account the circumstances of Korea instead of adopting the approach of the Brussels I Regulation.