미국 법원의 판결에 대한 승인과 집행 요건 — 서울고등법원 2023. 6. 15. 선고 2022나2006650 판결에 대한 평석 —

The recognition and enforcement of foreign judgments have generally seen considerable development in legal doctrine through academic theory and case law. However, precedents concerning whether a foreign judgment may be recognised when it has procedural flaw have been rare. On this issue, the Seoul High Court delivered an interesting ruling in June 2023. While concurring with the conclusion of this judgment, the author has written this paper to supplement the omitted or unclear reasoning. First, this judgment confirmed the principle that, pursuant to an exclusive international jurisdiction agreement between the plaintiff and defendant, res judicata arises from the judgment in the prior proceedings, establishing that the Korean court lacks jurisdiction. Consequently, any claim asserting that the US court in this case has jurisdiction, which is in contradiction to that prior judgment, cannot be permitted as it would contravene this res judicata. Secondly, while case law requires a reasonable connection between the case and the foreign court as a condition for the validity of an exclusive international jurisdiction agreement, this requirement should be deemed satisfied merely by the parties having agreed to designate that foreign court as the court of jurisdiction. Thirdly, in the case at hand, the default judgment was rendered on the premise that the defendant failed to appear one day before the expiry of the period for appearance set by the court. However, this circumstance alone cannot be taken to mean that timely service was not effected. Fourthly, the judgment of the Amercian court at issue in this case rendered in absentia on the day before the expiry of the time limit for appearing, and thus contains a procedural defect. However, opportunity to remedy this defect was afforded during the objection proceedings, but the defendant failed to avail himself of that opportunity. Consequently, the procedural defect can be deemed cured under the law of the country of origin.