2019년 헤이그 재판협약의 우리나라 입법, 해석, 실무에 대한 시사점과 가입방안

The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (“the 2019 Judgments Convention”) offers a convenient regime without a serious burden. This Convention may be less burdensome to Contracting States than the 2005 Convention on the Choice of Court Agreements, as long as the refusal mechanism is well administered. Above all, the 2019 Judgments Convention is a single convention: it does not deal with direct jurisdiction at all. The lis pendens is only touched on as a refusal ground, which is not subject to a tight scrutiny. A slight expansion of the subject matter, which represents a natural development of the will of the states, is not a heavy burden, either. Indirect jurisdiction rules of the Convention are basically limited to what can be relatively easily agreed upon; innovations are few. The exclusions of certain acta iure imperii were introduced, and further exclusions for governments may be made. The provision on jurisdiction ratione materiae for torts is very limited. Recognition and enforcement may be postponed until the opportunities for ordinary appeal run out. The Convention does not deal with the procedures of recognition or enforcement, except the issue of security for costs. The benefits of joining the 2005 and 2019 Conventions may be small, if one only considers the relationship with advanced regimes abroad. However, there are states that are less friendly to recognition and enforcement. Notably, Korea's joining of the two Conventions may induce those foreign states to join as well. If this process moves smoothly, Korean judgements may have a better chance of being recognized and enforced abroad. Moreover, the two Conventions will relieve Korean courts' burden of examining the reciprocity issue. Indeed, the recognition and enforcement of the judgments of diverse foreign states will more likely be a benefit, not a loss. On the other hand, changes are only expected to be gradual outside the 2019 Convention. Above all, a joint membership of the 2019 Convention alone does not create a reciprocity for the recognition and enforcement under national rules. However, mutual trust will grow between the Contracting States, which may work to enhance recognition and enforcement under national rules. The 2019 Convention may offer a stimulus for a legislative reform of national rules. It may also provide a basis for negotiating a bilateral or regional convention, or another future Convention in the Hague, covering a broader scope of matters and issues. Particularly difficult is to articulate the declarations of excluding certain matters and the criteria for refusing to create a mutually binding relationship. The declarations of the subject matter exclusions should better be considered for the two Conventions coherently. Notably, a judgment of the chosen court may benefit from the 2019 Judgments Convention, if the choice-of-court agreement is determined as not binding due to the infringement of public policy or the violation of an overriding mandatory rules. Indeed, the cases will be frequent where the defendant, sued in a chosen forum, objects to its jurisdiction in vain. In order to deal with such situation effectively, the declarations for subject matter exclusions should basically be identical for both Conventions. Ideally, the declarations of subject matter exclusions should be made at the time of ratification. The time taken for considering and discussing this issue may end up delaying ratification, which may give an impression that Korea should be evaluating the two Conventions negatively. An early signature may help relinquish any such negative impression. The simplest way of make the Conventions part of Korean law is to publish the text with a Korean translation in the Official Journal. As a corollary to this measure, Section 4 on the recognition and enforcement of foreign judgments may be created in Chapter 1 (General Principles) of the Private International Law. Here an explicit reference may be made to the Convention and the national rules. Regarding the security for costs, the Convention will require a reform of national rules, unless a negative declaration is to be made. A general reform is preferable to a special legislation for Convention cases only. The second best alternative would be to add a proviso for Convention cases in the relevant national rule. The 2019 Judgments Convention may also stimulate an improvement of national rules. The selectivity of the rules on indirect jurisdiction should not be understood to convey a message that national rules would better be cut down accordingly. There is nothing that prevents expansion of indirect jurisdiction under national rules, unless Article 6 is violated. In some respects, however, the 2019 Judgments Convention offers a legislative model for a legislative reform of Korean national rules. The indirect jurisdiction provisions on trusts are most noteworthy. They are a product of careful and patient efforts to create a uniform rules. Remarkably, they dispense with forum legis, and the remaining rules are worthy of a broad acceptance. It is therefore submitted that Articles 5(1)(k) and 7(1)(d) on trusts should be added to the 2020 Reform Bill of the Private International Law Act, with linguistic polishings. Meanwhile, no urgent need is perceived to emulate Article 5(1)(b) on natural persons. The resulting gap could be filled effectively by activity-based jurisdiction (Article 4(2)), property-based jurisdiction (Article 5) and the jurisdiction over related claims against the same defendant. The Convention regime for refusal grounds and costs may provide an interpretive guide for national rules as well as a legislative model. However, there is no need to substitute the Convention rules for the whole set of the existing national rules. First of all, some provisions of the Convention are not ideally drafted: to name a few, the reference to the national security and sovereignty, and the “close” link requirement in the lis pendens provision. Secondly, well drafted provisions may well be taken into account in interpreting national rules, without any legislative emulation. So the requirement of legality of the service of process, in Article 217(1)(ii) of the Civil Procedure Law, should be narrowly interpreted as referring only to the fundamental principles on the service of process. This is the technique known as purposively narrow interpretation. Of course, the legality requirement in Article 217(1)(ii) can also be revised by importing the relevant part of Article 9(c)(ii) of the 2005 Choice of Court Convention and Article 7(1)(ii) of the 2019 Judgments Convention. Meanwhile, Article 217-2 of the Civil Procedure Law could be revised to provide for the categorical exclusion of noncompesatory damages. This will assist Korean courts in drawing a clearer line between compensatory and noncompensatory damages and dealing with an exceptionally high amount of compensatory damages under the general exclusion clause of Article 217(1)(iii). Meanwhile, the ongoing negotiation of a future Convention on lis pendens also merits a careful attention. Depending on the tone of this future Convention, the practical function of the 2019 Judgments Convention may significantly differ.