國際的 公序問題에 관한 硏究

• 영문명: A Study on the Considerations of International Public Policy
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이병화(Byung-Hwa Lee)
• 간행물 정보: 『비교사법』비교사법 제12권 2호, 411~454쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

Nowadays, as international exchanges become more actively developed and the ground of personal activities becomes also more expanded worldwide than before, there are frequent disputes in legal relations that involve international factors. In this regard, there have been steady efforts to unify the provisions of private law across different countries or establish an unified private law applicable exclusively to international relations of private law with regard to the most ideal ways to regulate rapidly increasing international relations of private law. However, the regulation based on this unified private law has legal effects only within limited scope on the spatial and itemized level, so in practice, it can be said that regulation means based on private international law still play a major role. Incidentally, it is usual that proper laws based on private international law are specified in abstract form as shown in national law, domicile law and law on the place of an act, so the detailed contents of legislation specified as proper law or results of applying such legislation are beyond our public understanding. Therefore, depending on what is provided and contained in foreign law specified as a proper law in certain legal relations, the legal application may cause any potential damage to domestic public policy in a country as jurisdiction, i.e. its social order in the aspect of private law. In other words, the specification of proper law based on private international law is made via connection points. For instance, like foreign laws that admit monogamy, a heterogeneous law that is different from domestic laws in contents becomes possibly adopted as proper law, and if the foreign law is applied domestically as it is, domestic basic legal order might be in risk and damaged. If so, in which cases the application of foreign laws should be rejected and excluded as ones against public policy in terms of private international law? Indeed, relevant criteria varies more or less across countries, and each nation makes independent decisions about the criteria from their own standpoints, which causes a series of troublesome disputes and challenges. Therefore, this study intends to look into the purport and requirements of international public policy on the level of private international law, and compare public policy on the level of civil law with that on the level of civil proceedings act, both of which are distinguished from international public policy. Then, in terms of considerations about international public policy from the angle of comparative law, this study also aims to analyze major jurisprudential hypotheses and judicial precedents as published in United Kingdom, France, Germany, Japan and Korea. Finally, this study intends to address deficiency theory and deficiency rejection theory in details depending on whether the legal application of international public policy may cause any potential deficiency in law and regulations, and thereby suggest private opinions about that.

목차

Ⅰ. 序論

Ⅱ. 國際的 公序의 意義 및 要件

Ⅲ. 國際的 公序와의 區別槪念

Ⅳ. 國際的 公序에 관한 比較法的 考察

Ⅴ. 國際的 公序의 適用結果

Ⅵ. 結論

[참고문헌]

【ABSTRACT】