불법행위에 관한 준거법 집중의 필요와 한계

Under the private international law rules a tortious obligation may be subject to multiple applicable laws. This presents the challenge of balancing competing policy considerations: promoting legal certainty and applying the most appropriate applicable law. The provisions of Private International Law contemplate the application of multiple applicable laws. PIL allows the parties to a contract to select the law applicable to the whole or a part only of their contract. Thus, PIL expressly permits dépe age for a contract. However, PIL does not generally introduce party autonomy nor provides for dépe age in tortious obligations. Given this, it is important to explore whether dépe age in tort is permissible under PIL. This requires an analysis of the tension between two key policy objectives: certainty and flexibility. This paper examines the potential for dépe age in tort by harmonizing these policy considerations. It also reviews dépe age for a contract when the law governing a tortious obligation is determined by the accessory connection. Additionally, attention must be given to the protection of weaker parties in consumer or employment contracts. Although PIL allows limited party autonomy in tort, this choice may lead to dépe age. Furthermore, the law of the forum may apply to a tortious obligation through overriding mandatory rules and public policy. Consequently, a workable compromise is needed to balance the benefits of getting the most appropriate law for different elements of a tort with the challenges of applying fragmented and incoherent laws. This could necessitate revisiting PIL Even in interpreting PIL prior to its revisit it is necessary to ensure that a reasonable balance is struck between competing policy considerations.