남북교역 활성화와 단계적 통일과정에 따르는 준국제사법 제정방향 - 남북한 국제사법의 비교를 포함하여 -

As the relationship between South Korea and North Korea develops, commercial interaction and cooperation between the peoples of the two Koreas as well as government-led economic projects will become commonly possible. When a mass of commercial ties between the citizens of the two Koreas are formed, there will be a heightened need to establish a separate quasi-private international law to solve related problems in an environment with legal stability instead of simply applying South Korea’s private international law or North Korea’s Foreign Civil Relations Law. If political integration of the two Koreas advances as with economic cooperation, and a country with two different legal systems emerges, the two Koreas must jointly exercise their sovereignty on differentiating and setting boundaries between jurisdiction to prescribe for the whole of the Korean peninsula and the same for each region. Quasi-private international law between South and North Koreas will have inherent limitations as a form of transitional legislation destined for abolition at the completion of the unification process. Still, the most efficient way of regulating quasi-private international law issues in a situation where interactions and cooperations between individuals of South and North Koreas are invigorated and a multitude of legal relations are repeatedly established, maintained and terminated, is to enact a quasi-private international law that can accomplish legislative policies of each jurisdiction. It would be advisable to include within the scope of legislation not only rules for determining the applicable law but also international adjudicatory jurisdiction, recognition and enforcement of foreign judgements and cooperation in civil matters. Moreover, even if interaction between individuals of South and North Koreas increases, it would be a more realistic form of legislation to finely stipulate the general provision for determining applicable law and to state the principle of applying related laws by analogy for particular provisions for determining applicable law, international adjudicatory jurisdiction and the recognition and enforcement of foreign judgements, etc. However, as a citizen of one country can only have one nationality, nationality cannot be used as a connecting point in quasi-private international law, contrary to private international law. Consequently, there is a need to follow the example of West Germany by using habitual residence as a substitute connecting point.