외국재판의 승인·집행에서의 상호보증 요건에 관한 미국법의 입장 및 시사점

The reciprocity in the recognition and enforcement of foreign judgments means the principle under which the state of origin has to reciprocate by rec ognizing the enforcing state’s judgments insofar as the enforcing state recognize the originating state’s judgments. The concern over the reciprocity problems has relatively weakened as reflecting the recent studies and discussions mostly on the abolition or relaxation of the reciprocity requirement in line with relevant uniform regimes, instruments and implementing statutes or regulations to that effect. Such a reality is presumably predicated on the prevailing perception that the reciprocity stands to no reason but to retaliation in nature ensuing from the different treatment on the foreign judgments albeit the judgement is nothing wrong in itself. The United States is not a party to any multilateral or bilateral enforcement regimes, which makes each state take a different position towards the reci procity treatment. The U.S seems to have a strong perception that while the U.S has been relatively generous in recognizing and enforcing foreign judg ments, the U.S. creditors have been comparatively less successful in their en deavors to enforce their judgments abroad. This article points out such an awareness of U.S. on the disparity of willingness in recognizing and enforcing the foreign judgments between the U,S. and foreign courts has made the U.S. adhere potentially to the reciprocity treatment against the uniform model laws which have no longer required the reciprocity as a prerequisite of recognition. These situations could be understood from the facts that a number of states have still accepted the reciprocity requirement while adopting but amending the Uniform Foreign Money Judgments Recognition Act (UFMJRA) of 1962 and/or the Uniform Foreign Country Money Judgments Recognition Act (UFCMJRA) of 2005, which had removed the reciprocity in recognizing and enforcing the for eign monetary judgments, furthermore from the facts that the Federal Statute on the Recognition and Enforcement of Foreign Judgments of 2005 proposed by the American Law Institute had incorporated the reciprocity as a mandatory re quirement even against the severe criticisms by the commentators. In the U.S., meritorious foreign judgments are likely to encounter problems due to the lack of uniformity among the state laws governing their recognition and enforcement, thus having a foreign creditor overcome a serious hurdle to effectuate the his/her judgment by providing a number of procedural and sub stantive defences. Against this backdrop we have to work out case-by-case by scrutinizing the current laws and statutes regarding the reciprocity treatments between the each state of U.S. and Korea. The U.S and Korea are not to be expected in the coming years to sign up to the Hague Convention on Choice of Court Agreements of 2005 and/or the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 2019, apparently showing the ‘wait-and-see’ attitude while resisting to come on board until a number of other countries have done so. Under these circumstances the fast and efficient method to ac tually ensure the reciprocal guarantee on the recognition would be for judicia ries in the U,S and Korea to enter into Memorandum of Guidance(MOG) setting out in a non-binding document the criteria and procedure that a judiciary will apply when considering whether to recognize a judgment rendered by the oth er judiciary. Ultimately it is hoped that the mutual recognition could be achieved through mutual faith or trust by having sustainable negotiations and en tering into necessary instrumenin a step-by-step manner. Such an approach is needed to resolve the recognition and enforcement problems of foreign judg ments in order to ensure the circulation and certainty of foreign judgments on the transnational disputes.