이혼의 준거법의 결정방법 및 규율범위와 숨은 반정의 법리의 재고찰 - 대법원 2021. 2. 4. 선고 2017므12552 판결을 계기로 삼아 -

Provoked by the Supreme Court of Korea’s decision of Docket No. 2017Meu12552 rendered on February 4, 2021, this paper reviews the method of determining the governing law of divorce and the scope of the law governing divorce, and reexamines the principle of hidden renvoi. The judgment of the lower court, the Seoul High Court, of Docket No. 2016Leu22226 rendered on July 11, 2017 applied the Canadian Divorce Act, the law of the couple’s same nationality, as the governing law for divorce. Strictly speaking, the law of the couple’s same nationality is the law of Quebec, Canada, which is the most closely related jurisdiction as the law of the couple’s common place of habitual residence, but since the Canadian Divorce Act is valid throughout Canada including Quebec, it was applied as the law of the couple’s same nationality. Unlike the Korean Civil Code, the Canadian Divorce Act is no-fault divorce law, but it cannot be said that the application of the same by the Korean courts is contrary to public policy under the Korean private international law. This is because, as the Supreme Court of Korea has developed an interpretation that alleviates its fault divorce law, it cannot be seen that no-fault divorce law itself goes against the fundamental values and justice under the Korean Constitution. The claim for alimony for the divorce itself, filed along with the divorce claim, is a type of payment of money in the case of divorce and is a matter of the effects of divorce, so it should be governed by the law of the same jurisdiction where the law governing divorce belongs. The claim for property division is a matter of the effects of divorce as well and an adjustment of family property incidental to divorce, so it should also be governed by the law of the same jurisdiction where the law governing divorce belongs. Even if there is no difference in the conclusion that the Civil Code of Quebec is applied, the Seoul High Court’s decision that alimony for divorce itself is characterized as a tort and the division of property in the case of divorce as a matrimonial property regime (or its liquidation) is not reasonable. However, the fact that the Seoul High Court and the Supreme Court of Korea did not mention the principle of hidden renvoi provides an opportunity to reexamine whether the principle should be accepted as an interpretation of Korean private international law. The Courts, if they had followed the court precedents, should have reviewed whether the jurisdiction was acknowledged in the Korean courts as a result of applying the rules of international jurisdiction in Quebec. According to the principle of hidden renvoi, it is interpreted that the rules of international jurisdiction in Quebec, where the applicable law of divorce belongs, hides the conflicts rule that if the jurisdiction of Quebec is acknowledged, the substantive law of Quebec is applied. However, there are the following problems with the principle of hidden renvoi: (i) hidden renvoi is only a legal disguise to facilitate convenience in the application of domestic law, but rather hinders the international conformity of judgments, which is the original purpose of renvoi; (ii) it is unreasonable to reinterpret the rules of international jurisdiction in foreign countries as renvoi, even though those rules are indifferent to the application of the laws of other countries other than their own; and (iii) in cases where only non-exclusive jurisdiction is acknowledged in the Korean courts according to the rules of international jurisdiction in the foreign country, the situation that the jurisdictions of the Korean courts and the foreign courts coexist results in the problem of forum shopping. Considering the criticism from the perspective of both legal theory and policy, the principle of hidden renvoi should no longer be recognized in the Korean courts.