국제부양사건의 합의관할·변론관할·관련관할 - 2022년 개정 국제사법의 보호적 관할규정의 비판적 검토를 중심으로 -

The rules of international jurisdiction in private international law are established considering various interests and perspectives. The so-called 'protective jurisdiction' is a jurisdictional rule formulated from the perspective of safeguarding the vulnerable. The Act on Private International Law (APIL), which came into effect in July 2001, established protective jurisdiction provisions only in consumer contracts and labor contracts. However, the Amended APIL, introduced protective jurisdiction provisions for maintenance cases (and inheritance cases) as well. These newly introduced clauses restrict jurisdiction by agreement and jurisdiction of pleading in cases where minors and wards are parties to maintenance cases. However, these newly introduced protective jurisdiction provisions are creating a contradictory situation where, instead of protecting the vulnerable, they actually disadvantage them. Starting from this awareness of the issue, jurisdiction by agreement, jurisdiction by pleading in maintenance cases, and additionally jurisdiction over connected cases in the Amended APIL will be analyzed to determine if they are truly serving the purpose of protecting the vulnerable. The criteria for evaluating international jurisdiction are examined in the chapter Ⅱ. International jurisdiction can be analyzed from the perspectives of jurisdictional interest, the constitution, parallelism with the governing law, and considering the specificity of each domain. The scope of application of protective jurisdiction is reviewed in the chapter Ⅲ. ① It is pointed out that the argument that only non-litigation cases can be considered maintenance cases in private international law is inaccurate. ② It is reviewed whether protective jurisdiction is transferred to the assignee or subrogating person when rights are assigned or subrogated. In Europe, there has been contrasting views, which are the personal privilege theory and the claim-based attribution theory. The Court of Justice of the European Union (CJEU) views that protective jurisdiction does not transfer in the case of the assignment of consumer contract rights, taking a personal privilege approach, whereas in maintenance cases the CJEU recently changed its precedent in favor of the claim-based attribution theory, stating that protective jurisdiction is transferred to subrogating person of maintenance claims. After reviewing contrasting theories and judgments in Europe, it is discussed whether protective jurisdiction is transferred according to assignment or subrogation under the Amended APIL, specifically in consumer contracts, labor contracts, and maintenance rights. The provisions on jurisdiction by agreement and jurisdiction by pleading in maintenance cases are critically reviewed in chapter IV. The problem of these provisions causing disadvantage to the weaker party is specifically pointed out, and through a comparative legal review, it is clarified that no other legislative example resembles the current provisions. The discussion in the legislative process of the revised private international law is overviewed, tracing how the initially rational and sound draft transformed into its current form. Subsequently, appropriate interpretation of current provisions is presented. It is argued that jurisdiction by pleading should be recognized for non-litigation cases that have an adversarial process and are highly contentious. The problem of protective jurisdiction regulations in current private international law disadvantaging the weaker party can be resolved through a teleological reduction. Furthermore, a revised draft of the APIL to address the current issues in the law is presented. The issue of jurisdiction over connected cases in family matters is addressed in Chapter V. In accordance with decisions from the European Court of Justice, it is reasonable to interpret that maintenance cases are ancillary solely to cases of parental responsibility, and not to cases concerning marital relationships, ensuring alignment with the child's best interests. To uphold this legal principle, the scope of application of Article 6(3) must be interpreted restrictively, meaning that cases of parental responsibility should be regarded as ancillary to matrimonial matters only when such interpretation is indispensable to avoid conflicts between substantive law and private international law. During the trial process of maintenance cases, it is also possible to judge on the preliminary issue of personal status, but the judgment on this preliminary issue should be limited to being effective within that procedure. A draft amendment for jurisdiction over connected cases provisions is presented. Lastly, several specific topics on relationship between renvoi and jurisdiction by agreement/jurisdiction over connected cases are discsussed. ① Article 8(1) of the Amended APIL designates the law (including choice-of-law rules) of the agreed forum as the governing law for the substantive validity of choice-of-court agreements. Then, if Korean law refers to a foreign law, and the choice-of-law rule of that foreign law refers back to Korean law, which law should be the governing law for the substantive validity of choice-of-court agreements? The solution is presented based on Article 22 of the Amended APIL on renvoi, or alternatively based on validation principle of interpretation. ② It is argued that ‘hidden renvoi ’ adopted by the Supreme Court of Korea should be renounced. As cases on post-divorce maintenance will increase as a result of the renouncement of hidden renvoi, some issues regarding jurisdiction over connected cases including post-divorce maintenance cases are discussed.