재산관계에 관한 국제재판관할법의 2022년 개정

In creating the new rules on international jurisdiction created in 2022, the drafters put an emphasis and focus on patrimonial matters. This led to an effort to provide for detailed and sophisticated rules as far as practicable. The legislative model was found in the 1999 Hague Preliminary Draft and the 2005 Hague Choice of Court Convention. So the new rules follow the continental European style of legislation. Concise provisions without detailed clarification were preferred. Naturally, the drafters sought to strictly limit each basis of jurisdiction, so as to stay away from exorbitant jurisdiction. Particularly notable is the broad limitation imposed on the place-of-performance jurisdiction for contract cases (Art. 41). A strict limitation was also introduced on the jurisdiction over related claims when they are filed against different defendants (Art. 6(2)). However, legislative clarification was not made throughout the amendment. In some places, the drafters minimized the breadth of legislative resolution and chose to defer difficult issues to interpretation. The prime example would be the criteria for establishing a habitual residence. Further limitation to tort jurisdiction at the place of harm, other than the condition of predictability, is also left to the academia and the courts. Establishing the rules of jurisdiction for internal matters of a trust was wholly left as a future task. Notwithstanding this legislative vacuum, the settlor should be allowed make a unilateral choice of forum, although this will be a point of debate. In some heads of jurisdiction, the drafters chose to expand the available grounds of jurisdiction, rather than trying to limit them. Justification was found in the realistic considerations and being an autonomous legislation. In this connection, particular attention was paid to the rules of internal jurisdiction provided in the Civil Procedure Act and the rules of international jurisdiction provided in the Japanese Civil Procedure Act as amended in 2011. Special jurisdiction at the place of “continuous and systematic activity” was newly introduced (Art. 4, para. 2); jurisdiction over related claims between the same parties was also preserved (Art. 6, para. 1); the bases of jurisdiction over counterclaims were even expanded, so that a connection with the defense will generally suffice (Art. 7); forum patrimonii as restricted by the “substantial connection” test was also preserved, taking into account the convenience of enforcement (Art. 5 ii); the place-of-performance jurisdiction was broadly preserved in the case characteristic performance is clearly defined (Art. 41, para. 1); contract jurisdiction is to be upheld without limitation at the place of performance (Art. 41, para. 2); no particular limitation is imposed on the contractual agreement over the place of delivery (Art. 41, para. 2), leaving open the possibility of allowing a fictitious agreement to some degree. The new law also sought to provide for sufficiently wide-ranging set of jurisdictional bases for special jurisdiction for contracts in intellectual property (Art. 38) and that for infringement of intellectual property (Art. 39). Forum patrimonii as limited by the substantial connect test (Art. 5 ii) and the forum non conveniens provision (Art. 12) deserve special attention, in that they leave a large room of discretion to judges. The two provisions has a potential to function positively by introducing flexibility. Meanwhile, they may end up hindering the interpretive development of sophisticated standards and greater uncertainty. Forum patrimonii, even functioning under the constraint of the “substantial connection” test, should only remain a final resort and play its proper function. An excessive use of this basis will cause stagnation of the further development of the Korean law of international jurisdiction, and will practically cause difficulty in having Korean judgments recognized and enforced abroad. Forum non conveniens doctrine is new to Korean law, but has found an appeal among Korean lawyers and researchers, as a tool for allowing a free reign for judges. But this enthusiasm carries the danger, which needs to be controlled. The availability of this defense cannot be an excuse for neglecting to attempt a narrow interpretation of jurisdictional bases. It is also submitted that the court should not bother to strike down this defense when frivolously invoked by the defendant. Efforts need to be made to distinguish the factors that may be considered and those not. This defense should practically be limited to situations where the plaintiff abused its privilege of choosing a forum, or like situations.