인터넷에 의한 통상의 계약에 관한 소의 국제재판관할

The Internet does not assume a real physical space and has unique characteristics such as non-face-to-face, anonymity, and access from anywhere. Therefore, if legislation and theories on international jurisdiction based on the premise of real space are applied directly to international disputes over the Internet, inappropriate results may occur. Since the Internet transcends geographical limitations, there is a possibility that international jurisdiction will be recognized anywhere in the world. The 2022 full revision of Korean Act on Private International Law (completely revised on January 4, 2022, effective on July 5, 2022, hereinafter ‘Revised KOPIL’) enhanced legal stability and predictability in determining international jurisdiction by introducing regulations on international judicial jurisdiction. However, even under the Revised KOPIL, it is not clear which country’s court has international jurisdiction when resolving an international dispute over the Internet through litigation. In this study, taking the characteristics of the Internet into account, specific suggestions have been made on how the provisions on international jurisdiction over lawsuits regarding contracts concluded via the Internet under the Revised KOPIL should be interpreted. This study researched what factors would be considered in determining the international jurisdiction over lawsuits regarding ordinary contracts via the Internet under the Pre-Revised KOPIL through reviewing courts’ precedents in which Pre-Revised KOPIL was applied. Next, in determining the international jurisdiction for lawsuits related to ordinary contracts via the Internet under the Revised KOPIL, this study examined Article 41 of the Revised KOPIL, which stipulates special jurisdiction for lawsuits related to ordinary contracts. This study also provided standards for whether a contract falls under a typical contract pursuant to Article 41(1), or other types of contracts pursuant to Article 41(2), and pointed out the differences in applying either Articles 41(1) or Article 41(2). In particular, in case of a contract under Article 41(2) of the Revised KOPIL, interpreting “the place where the obligations that formed the basis of the claim were performed” as the ‘location of the server’ would infringe on the predictability of the other party of the Internet business operator, while interpreting it as ‘any place with accessibility’ would infringes on the predictability of the Internet business operator. Therefore, in consideration of both the position of international treaties and the reasonable predictability of each party, this study suggested an appropriate interpretation that the ‘location of the Internet business operator as a debtor’ should be regarded as “the place where the obligations that formed the basis of the claim were performed” under Article 41(2) of the Revised KOPIL. Furthermore, when an agreement is made on exclusive international jurisdiction when concluding a ordinary contract over the Internet, Paragraphs 1 and 5 of Article 8 of the Revised KOPIL, do not require “reasonable relationship” between the case and the designated foreign court as a condition for validity of the agreement. Therefore, this study pointed out that when concluding a ordinary contract over the Internet, the effect of the exclusive jurisdiction agreement may be recognized even if the parties agree for a court in a neutral third country unrelated to the case as the court of jurisdiction. In addition, in determining the international jurisdiction for lawsuits related to ordinary contracts over the Internet, the general jurisdiction under Article 3, the special jurisdiction based on the locations of offices or places of business and operating activities under Article 4, and the general principles of Article 2 of the Revised KOPIL could be applied. Even though there is a lot of theoretical and practical confusion regarding the determination of international jurisdiction for lawsuits related to contracts via the Internet, the prior studies leave much to be desired. It is expected for this study to act as an opportunity to accumulate researches which present standards for determining international jurisdiction over lawsuits related to contracts on the Internet, thereby enhancing legal stability and predictability of the parties when determining international jurisdiction.