준거법인 외국법의 조사에 관한 소고

According to the Private International Act (“the Act”) Article 5, a court should investigate ex officio the contents of the foreign law designated by the Act. So far, the court has been somewhat passive on the ex officio investigation, relying heavily on the materials submitted by the parties and applying the sound reasoning and the domestic law too hastily when the contents of the foreign law has not been sufficiently known. The foreign law as the governing law is not a fact but a law, and it is the duty of the court to investigate and apply the foreign law. If the court relies entirely on the parties’ submission and does not exercise its duty and power to investigate the foreign law, it would be the abandonment of the court’s duty. The court should take a more active role in investigating the foreign law. The Supreme Court should also stipulate such duty of the court in its decisions. The internal unofficial investigation of the court and the affidavit by the foreign law expert are commonly used methods for the investigation of the foreign law. However, if the parties do not cooperate, the most appropriate method for the court to investigate the foreign law ex officio is the expert opinion and expert witness. The court should actively designate an expert if the investigation of the foreign law is needed, and should pay the incurring cost in advance from the budget if necessary. Finally, the contents of the foreign law investigated by the court officially or unofficially should be disclosed to the parties and their procedural right to give opinions to the finding should be guaranteed.