로마Ⅲ규칙에 있어서 이혼 및 법적 별거의 준거법

• 영문명: The Applicable Law to Divorce and Legal Separation in the RomeⅢ Regulation
• 발행기관: 한국가족법학회
• 저자명: 오석웅(O, Seog-Ung)
• 간행물 정보: 『가족법연구』家族法硏究 第34卷 2號, 279~306쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2020.07.31

영문 초록

Council Regulation(EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation(“RomeⅢ”) has taken effect on June 21, 2012. Therefore, the RomeⅢ Regulation provides the uniform rules adopted by the EU to determine the law applicable to divorce and legal separation. The RomeⅢ Regulation is an instrument implementing ‘enhanced cooperation’ between the participating Member States. Now, it is a regulation concerning the applicable law regarding divorce valid in 17 countries. Specifically, the RomeⅢ Regulation enhances the parties autonomy by giving the spouses a limited possibility to choose the applicable law to their divorce or legal separation: the law of the State where the spouses are habitually resident at the time the agreement is concluded; the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; the law of the State of nationality of either spouse at the time the agreement is concluded; or the law of the forum. In the absence of a choice by the parties the Regulation contains a scale of successive connecting factors to determine the applicable law, based on the habitual residence, the nationality and the lex fori: Divorce and legal separation are governed by the law of the State a) where the spouses are habitually resident at the time the court is seized; or, failing that b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that c) of which both spouses are nationals at the time the court is seized; or, failing that d) where the court is seized. This article analyzes the RomeⅢ Regulation, the uniform rules adopted by the EU to determine the law applicable to cross-border divorce and legal separation.

목차

Ⅰ. 머리말

Ⅱ. 로마Ⅲ규칙의 성립배경과 법 형식, 구성

Ⅲ. 적용범위

Ⅳ. 이혼 및 법적 별거의 준거법

Ⅴ. 맺음말

키워드

로마Ⅲ규칙 준거법 이혼 및 법적 별거 당사자자치 상거소지 국적 법정지 RomeⅢ Regulation applicable law divorce and legal separation parties’ autonomy habitual residence nationality lex fori