국제재판관할법 전면 개정의 의의와 과제

In its efforts to promulgate a modern code of civil procedure, Japan failed to make its venue rules fit for providing for the rules on international jurisdiction under the double functionality doctrine, although Japanese Civil Procedure Code modeled on the German Civil Procedure Code. Korean Code of Civil Procedure preserved the Japanese law imposed under the colonial rule, so that Korean law of international jurisdiction was placed under a similar situation as Japan. In the end, the case law concluded that there is no provision having a double function among the venue provisions in the Korean Code of Civil Procedure. Filling the legislative gap in this area was left to interpretation. In the 2001 amendment of Private International Law Act, only a few provisions on international jurisdiction were added. The general clause of Article 2 was introduced, but it had a significant negative effect. The Supreme Court construed Art. 2 as giving judges a wide discretion to gauge whether a “substantial connection” exists. The majority of the Supreme Court decisions found that Art. 2 provides for a discretionary jurisdiction in a self-sufficient manner. While the minority of the Supreme Court decisions “refer[red]” (para. 2) to the venue rules, the case law fell short of applying a suitable venue provision mutatis mutandis, as Art. 2, para. 2 instructs and thereby filling the legislative gap. In 2022, a comprehensive set of provisions on international jurisdiction was added to the Private International Law Act. The amended law has important characteristics. First, it separated the rules on international jurisdiction and venue and placed the former within the Private International Law Act, although the new provisions mainly provide for Korean jurisdiction unilaterally. Second, the amended law adopts the continental way of minimal legislation, providing for essential framework with broad and concise language, while introducing Anglo-American elements of activity-based special jurisdiction and forum non conveniens. Third, the chapter on maritime commerce provides for a large scope of jurisdiction, seeking to counterbalance with forum non conveniens. Meanwhile, the bases of jurisdiction in other pecuniary matters tend to be carefully elaborated, as exemplified by the place-of-performance jurisdiction in contracts. Interpretation may limit jurisdictional bases property. Consequently, the role of forum non coveniens in pecuniary matters is expected to be limited to lis pendens and cross-border concurrence of related actions. Fourth, the chapter on natural persons focuses on sufficiently providing for jurisdictional bases, including those based on the need of protection. In this area, forum non conveniens will play an important role of coordinating domestic and foreign courts. Fifth, the chapters on family and succession provides for a narrow set of jurisdictional bases, focusing on the most important bases. This leaves a wide legislative gap, to be filled by interpretation. Forum legis and jurisdictional renvoi will play an important role. Important tasks remain after the 2022 amendment. The standards of habitual residence and relation among cases, in the context of jurisdiction over related actions and counterclaims, need to be explored. The procedure to decide jurisdiction and forum non conveniens, including the rules on evidence, should also be established. It is also desirable to join international conventions dealing with international jurisdiction. The sophisticated development of interpretive efforts and the participation in international conventions will enhance stability of civil and commercial life, as well as helping the function of a prospective International Commercial Court, by assisting foreign lawyers' understanding and application of Korean private international law and civil procedure law.