불편한 법정지의 법리 상 “적절한 대체법정지의 존재” 기준에 대한 연구

The Private International Law Reform Bill 2018 includes forum non conveniens doctrine, whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. If the doctrine would be adopted, courts will be able to decide more flexibly not to exercise jurisdiction over the cases filed by foreign plaintiffs against Korean defendants. However, due to the discretionary power given by the doctrine to the courts, legal stability and foreseeability will be diminished. In order to avoid confusion and instability, we need to establish well-trimmed standards for the doctrine. Even in the U.S. where the doctrine has been adopted since 1947, there are confusions and inconsistencies among federal circuit court of appeals regarding the standards for availability of adequate alternative forum. Parts of circuits presume that alternative forum exists if the defendant is amenable to the process in the other jurisdiction. Other circuits require adequacy of the alternative forum questioning whether the plaintiff is able to get adequate remedy in the other jurisdiction. In the U.S. a new test is discussed to resolve the inconsistencies, one that identifies the meaningful inquiries for courts to consider when deciding whether an adequate alternative forum exists. The test includes following factors: whether the alternative forum provides a meaningful remedy; whether the plaintiff will be treated fairly in the alternative forum; whether the plaintiff is able to access practically to the courts of the alternative forum; whether the alternative forum has adequate procedural law; whether the alternative forum is stable. Considering these factors, well-trimmed test should be prepared for courts of Korea so that newly adopted forum non conveniens may not cause any confusions and inconsistencies.