선박건조계약에 영국법을 적용한 대법원 판결(대법원 2017. 5. 30. 선고 2014다233176, 233183 판결)에 대한 평석－영국법상 이행기 전 이행거절, 계약 해제의 효과와 법원의 외국법 조사의무－

The Supreme Court of Korea recently rendered a decision (2017. 5. 30. 2014da233176, 233183) on a shipbuilding contract governed by English law. This judgment is meaningful in that the court applied English law, a highly preferred governing law for parties to international commercial contracts. This article aims to investigate whether the court properly applied English law, and further explores how the court should ascertain foreign law. The judgment appropriately applied the English law of anticipatory repudiation to the defendant’s case. However, the court’s finding that the plaintiff’s claim to the installment from the shipbuilding contract was unacceptable was erroneous. The termination due to repudiation under English law does not have a retrospective effect, and a builder may still claim the installment due at the time of termination of contract. The lower court (Seoul High Court) dismissed the plaintiff’s case on the installment on the grounds that it had failed to prove English law, and the Supreme Court upheld the decision. However, Article 5 of the Korean Private International Act and comparative studies on the inquiry into foreign law suggest that it is the courts’ duty to investigate and apply foreign law. The judiciary ought to allocate additional resources in order to enhance its capabilities to correctly apply foreign law. In addition, the judiciary must closely observe and participate in the efforts of other courts and international organizations such as concluding an MOU or treaties to facilitate global cooperation. As de lege ferenda, this article advocates for the adoption of a new provision in the Korean Private International Act, stipulating that Korean law shall apply in case of failure to establish foreign law.