국제계약법 분야 재판례의 회고와 과제

The purpose of this study is to analyze how the court applies and interprets the provisions of Korean Act on Private International Law (hereinafter “KOPIL”) on contractual claims by reviewing the precedents that have applied KOPIL in the contractual claims cases since the enforcement of KOPIL in Korea, and also to suggest future tasks borne to us to develop the courts’ doctrines based upon such precedents. When looking into the major precedents on contractual claims, it could be evaluated that our courts have been relatively faithful to both the texts and the legislative purpose of the provisions of KOPIL in the the field of international contract law. Recently, our courts are endeavoring to establish legal principles by rendering more specific judgments on the issues of KOPIL. However, we could find precedents that do not clearly provide the legal basis when dealing with the issues of KOPIL as regards the contractual claims. Also there are precedents that apply the provisions of KOPIL without complete understanding the relationship between the respective provisions thereof. For example, in a case where the British law was designated as the governing law for pure domestic contracts, although the court applied Korea’s Act on the Regulation of Terms and Conditions, but it did not make sure that the legal basis for applying the chosen law was Article 25(4) of the KOPIL. In addition, there exist some cases in which the court directly applies Article 26(1) of KOPIL without examining who is implementing characteristic performance solely on the ground that it does not fall under each subparagraph of Article 26(2) of KOPIL, which merely enumerates exemplary situations. In the case of cargo insurance contracts using terms and conditions under designated British law as a governing law, the same type of terms and conditions was at once interpreted by a full designation of governing law in cases where the pre-amended Conflict of Laws Act was applied in the past, whereas in such a case the theory of partial designation of governing law was in contrast adopted under KOPIL. In the future, our courts need to establish an accurate legal principle by accumulating precedents in which the courts have interpreted and applied the provisions of KOPIL more justifiably. To this end, it is necessary to analyze the text, system, and legislative purpose of KOPIL, and to take into consideration the interpretation of the “Convention on the Law Applicable to Contractual Obligations” (hereinafter ‘Rome Convention’), which was referred to when entirely revising the KOPIL. Also, since there are many reasonable rules amended by the conversion of the Rome Convention to the “Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations” (hereinafter ‘Rome I Regulation’), it is prerequisite to refer to the legislative and interpretive theory of the Rome I Regulation when interpreting the KOPIL. Also, since the rules amended by converting the Rome Convention into the Rome I Regulation are reasonable, it is quite persuasively advised to refer to the legislative and interpretation theory of the Rome I Regulation in the interpretation of KOPIL. For example, when determining the applicable law for seafarers’ employment contracts, Article 28 of KOPIL can be interpreted according to the base rule of the Rome I Regulation. However, even if the Rome I Regulation has some advanced and reasonable provisions, it should be avoided to extend or reduce the interpretation to the extent that it goes beyond the scope of interpretation and reaches the level of legislation when interpreting the provisions of KOPIL. Furthermore, we shall not hesitate to pursue the legislative improvement as to the parts that could not be solved by the methods of interpretation. In order to establish the precise interpretation and legislation on the provisions of KOPIL, the unintermittent efforts of the practitioners to find issues in private international law and to apply the rules of KOPIL accurately, as well as the academic community’s continued efforts to identify the problems and further suggest the directions of developments for the case theory to be established more systematically, would be recommendably paralleled.