상거소, 대표이사의 직무 위반의 성질결정, 재산소재지관할, 국제적 이중소송과 관련소송 - 대상판결: 의정부지법 고양지원 2020. 2. 14. 선고 2017가합72082 판결 -

Uijeongbu District Court Goyang Branch judgment of 14 February 2020, 2017gahab72082 dealt with the meaning of employment contract and whether it may include the employment of a representative director, forum patrimonii, lis pendens, related actions abroad, and characterization of a representative director’s breach of fiduciary duty. Also present was the issue of locating the habitual residence of a corporate officer dispatched abroad. The timing of this decision was also critical. The amendment bill for the Private International Law Act 2022, was made public in 2018. It did not leave a room for the overarching “substantial connection” based jurisdiction. The Korean Supreme Court responded in its decision of 13 June 2019, 2016da33752 with the idea that forum patrimonii may be upheld so long as the local property reached the forum state in a predictable manner. This case law attempts to turn forum patrimonii to a new general clause with sufficient arbitrariness, so as to replace the stand-alone basis of “substantial connection”. In contrast, Goyang Branch did not attempt to redefine forum patrimonii as an all-encompassing general clause. Instead, it faithfully followed Article 2(2) of the Private International Law Act to analogically apply the venue provisions of the Civil Procedure Act to the question of international jurisdiction, while remaining within the bounds of substantial connection, as provided in Article 2(1). This approach to the analogical application of venue rules, and forum patrimonii in particular, can serve as a model. Meanwhile, the decision in question reveals some shortcomings. First, the decision is silent on whether the defendant maintained his habitual residence despite the change of workplace. Second, the resulting reliance on forum patrimonii may have been redundant. Third, the court placed too decisive a weight on the title of representative director to be decisive in finding him falling outside the definition of an employee. His official title may may not match his substantive role, particularly where a foreign subsidiary functions under the routine control and direction of its parent company. Such representative director should be legally treated as an employee of the foreign subsidiary, and not its officer. Fourth, the court dismissed the claim in resolving the lis pendens situation in favor of a foreign court, but should rather have stayed the proceedings. Fifth, the court regrettably omitted to determine whether a related action pending abroad should be treated in somewhat similar manner to lis pendens. Sixth, the court erred in characterizing a corporate officer's breach of fiduciary duty as a question inherent in a corporation. But the characterization as a tort should have prevailed.