국제저작권소송의 준거법 판단에 관한 ‘미르의 전설’ 사건의 대법원 2024. 5. 9. 선고 2020다250561 판결에 대한 비판적 검토

The Korean Supreme Court Decision 2020Da250561 rendered on May 9, 2024 (hereinafter “the decision in question”), is significant as the first ruling by the Korean Supreme Court to address the issue of determining the governing law in international copyright disputes, particularly concerning the relationship between Article 5(2) of the Berne Convention—which has been arguably identified as a conflict-of-law rule in copyright— and Article 40 of the Korean Private International Law Act (formerly Article 24). However, in a context where there is no consensus among Berne Union countries that Article 5(2) of the Berne Convention constitutes a conflict-of-law rule, the decision in question does not convincingly explain why Korea considers Article 5(2) a conflict-of-law rule or how its meaning is interpreted. Instead, it relies solely on a prior Supreme Court ruling (Decision 2021Da269388), which states that the United Nations Convention on Contracts for the International Sale of Goods takes precedence over domestic Korean laws, to establish the relationship between Article 5(2) of the Berne Convention and Article 40 of the Private International Law Act. This approach is not sufficiently persuasive. Furthermore, the approach taken by the decision in question could lead to unnecessary and potentially confusing fragmentation of conflict-of-law rules, which is undesirable as it fails to consider the practical needs of legal practitioners.