‘실질적 관련’은 어디까지인가?

• 영문명: ‘Substantial Connection'? - A Comment on the Standard for International Jurisdiction under the Korean International Private Law in its Supreme Court case -
• 발행기관: 원광대학교 법학연구소
• 저자명: 최영란(Choi, Young-Ran)
• 간행물 정보: 『원광법학』제26권 제4호, 525~570쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.12.30

영문 초록

This is a comment on Case No. 2010da18355 of the Korean Supreme Court, which was decided on July 15, 2010. The paper mainly focuses on how to define the concept of 'substantial connection(s)' as a basic standard to determine whether a Korean court has international jurisdiction over a foreign-related case, which one or both parties is(are) alien(s), and/or subsequently, whether the court may excercise its jurisdiction over the case. The legal basis is Article 2 of the Korean International Private Law(KIPL) enacted in 2001, and other related provisions of the Korean Civil Procedure on jurisdiction or venue. The case at hand was brought by parents of one of the deceased flight attendants employed by the foreign defendant, Air China, of which plane was crashed into a hill near Busan, Korea, killing 129 of 166 passengers (Koreans as well as Chinese) and the defendant's employees on board, on April 15, 2002. The parents continued their lawsuit in Korea against the defendant, requesting for damages based on the employment contract between the deceased employee and the defendant, and on tort occurred in Korea. The court reviewed whether it was competent to hear the case, by considering factors related to some theories or ideals, including fairness, equality between parties, speedy trial, etc., on how to allocate jurisdiction among courts in different countries, which might derive from some domestic theories on selecting venues among other domestic courts. The trial court rejected its jurisdiction, holding that this case is "substantially connected" to China, since the two parties are the Chinese corporation and nationals. When it reached the Supreme Court, the Court granted jurisdiction on Korean courts, and remanded the case to the trial court for further review on the merits. The main argument of this paper is whether the Korean court has substantial connections with parties or with the legal dispute, and how to define the term, 'substantial connections' after considering relevant international factors on rules of jurisdiction and even those of choice of law. The paper looks over how the concept of 'substantial connection' was introduced to the KIPL, and implemented in its courts' rulings, especially in this case. One of the major references for 'substantial connection' is the rule of U.S. jurisdiction, "minimum contacts," of which backgrounds and development will be slightly mentioned, in order to search for how the 'substantial connection' concept can be understood or applied to our future Korean cases. Then, the paper focuses on the legal analysis by the Supreme Court case to look for better legal guidelines to exercise jurisdiction by the Korean courts over the foreign-related cases in the future.

목차

Ⅰ. 들어가며

Ⅱ. 대상판결의 사안 및 하급심의 국제재판관할권 판단 기준

Ⅲ. 대상판결의 국제재판관할권 논점

Ⅳ. 연 구

V. 나가며

참고문헌

Abstract

키워드

국제재판관할권 국제재판관할권 판단기준 실질적 관련 토지관할 준거법 국제재판관할배분이념 미국 재판관할 최소한의 접촉 국제물품매매계약에 관한 유엔협약 International Jurisdiction Standard to determine International Jurisdiction Substantial Connection Legal Dispute with Foreign Elements Substantial Choice of Law Allocation of International Jurisdiction Minimum Contacts United Nations Convention on the International Sales of Goods(CISG)