법인과 단체의 실체적, 절차적 준거법

This article deals with the general issues on the substantive and procedural law applicable to legal persons and other organizations focusing on the latest Korean Supreme Court and Court of Appeal judgments having dealt with such issues. In Part II, the author summarizes the general theories on the law applicable to legal persons and other organizations. When it comes to the law applicable to legal persons and other organizations, it is important to understand the contrast between ‘the place of real seat theory’ and ‘the place of incorporation theory’, as each theory focuses on different legal interests (the former attaches greater importance to legal security and national and/or public interest, while the latter emphasizes the interests concerning founders’ party autonomy). Article 16 of the Korean Private International Law Act adopted ‘the place of incorporation theory’ as the principle and ‘the place of real seat theory’ as an exception for the safety of domestic trade. In Part III, the author analyzes the scope of the issues regulated by the law applicable to legal persons and other organizations, based on the latest Korean Supreme Court judgments. Here, ‘characterization’ which delineates the scope of the matters regulated by the law applicable to legal persons and other organizations is important. Part IV handles the law applicable to the status of foreign legal persons and other organizations, and in particular their ‘capacity to become a party’ and ‘capacity to litigate’. The recent Court of Appeal authorities manifestly adopt the ‘theory of lex fori’, but the author supports the ‘theory of personal law(lex societatis)’. Through the present article, the author offers an overall and systematic analysis of the current domestic authorities and theories, in the hope to help those beginning in private international law to understand easily the issues revolving around the law applicable to legal persons and other organizations.