국제사법에서 준거법의 지정에 갈음하는 승인: 유럽연합에서의 논의와 우리 법에의 시사점

The task of private international law is to resolve conflicts of legal orders that arise in legal relationships with foreign elements. Its main themes are first, the determination of international jurisdiction, second, the designation of applicable law, and third, the recognition and enforcement of judgments made by foreign courts. Since the second topic deals with the designation of law applicable to a certain legal relationship or legal issue, that area of private international law (i.e., private international law in its narrow sense) is also called “referral norms (Verweisungsnorm)”. In recent years, however, the concept of recognition of legal situations created in foreign countries without control over the applicable law has spread in the European Union. This is an issue which arose upon the impact of the “country-of-origin principle”, initially created with public law obligations under the EU’s primary law and the e-commerce guidelines in mind, on private international law. This is called “recognition of legal situations” or “recognition in lieu of designation of applicable law”. In other words, the issue is whether recognition of legal situations is a new method of private international law that replaces or supplements the designation of applicable law as a method of resolving conflicts of norms. In this regard, the vested rights theory derived from Huber of the 17th century Dutch school is receiving new attention. In particular, the EU Court of Justice has, in the two areas of private international law concerning name and company, derived the principle of recognition of legal situations created in other Member States from the fundamental freedoms under the primary law (Rome Treaty and TFEU). As a phenomenon resulting from the restrictions imposed on the sovereignty of the Member States in the course of their transition from independent countries to members of the legal community of the European Union, recognition of legal situations is reminiscent of the Full Faith and Credit Clause of the US Constitution, and we also need to monitor the future progress further. In this article, the author deals with several issues in the following order: the traditional methods for resolving international conflicts of norms (Chapter Ⅱ), the recognition of legal situations discussed in the European Union (Chapter Ⅲ), a historical review of the vested rights theory (Chapter Ⅳ) and the European academia’s responses to the recognition of legal situations (Chapter Ⅴ), the examples of private international law rules adopting the recognition of legal situations principle (Chapter Ⅵ), the meaning and implications of the recognition of legal situations for Korean private international law (Chapter Ⅶ), and concluding remarks (Chapter Ⅷ). These discussions provide us with an opportunity not only to understand recent changes of private international law of the European Union which is at the root of Korean private international law, but also to revisit the basic structure of Korean private international law and to find implications for Korean private international law. In addition, by examining Huber’s theory focusing on sovereignty and comity and the vested rights theory, we can better understand the elaborate logical structure of private international law and the value of historical analysis in its study. Unlike in the European Union where a multi-layered system applies, in Korea, where there is no external high-level norm, in principle, designation of the applicable law is appropriate. However, as seen in the Hague Adoption Convention, the jurisprudence of recognition of the legal situation can be introduced through international norms within a limited range such as those on personal status. In addition, although legal situations created in a foreign country that are contrary to the applicable law designated by the Korean Private International Law Act may not be recognized in Korea, the author submits there may be room for an exception if insisting on such a conclusion will lead to unfair results violating the Constitution and human rights law of Korea.