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New Private International Law in Korea 267 New Private International Law in Korea 〔Kyung-Han Sohn 〕 New Private International Law in Korea 267 New Private International Law in Korea Kyung-Han Sohn ＊傘＊ I Introduction The “Sub-Oi-Sa-Beob ”（ Conflict of Laws Act of Korea). was enacted on January January 15, 1962 with no major changes until the Amendment of April 7, 2001. 2001. The purpose of the Amendment is to update the old law by incorporat- ing ing recent developments in Korean and international conflict of laws princi- ples. ples. The Amendment was proposed by the Ministry of Justice of Korea and passed passed the National Assembly, e宜ective as of July 1, 2001. The new law is renamed the “Kuk-J e-Sa-Beob ”（ Private International Law Act Act or the Conflict of Laws Act, ("new CLA ”） ) better defines the areas which were not su 任iciently addressed in the original act. such as jurisdiction, capac- ity ity to have rights, legitimation. legal person. intellectual property, agency, means of transportation. res in transitu, and security interest in claims. The new CLA also amends some provisions1u which may have been contrary to the the constitutional principle of gender equality. In addition, the new CLA adopts adopts the “Most Closely Connected Country ” rule in determining the gov- erning erning law and uses the concept of the “Habitual Residence ” as a connecting factor. factor. While the CLA broadens party autonomy, it also incorporates provi- sions sions to protect consumers and workers with weak societal and low eco ・ nomic nomic status. Also. the CLA narrowly defines the scope of renvoi which al- lows lows only remission but does not allow transmission in most cases. except in in the capacity to effect billing. To promote the congruence of international rules, the CLA reflects several international international laws relating to the governing law of international contracts. Those laws include the “EC Convention on Jurisdiction and the Enforcement of of Judgments in Civil and Commercial Matters. Brussels. 1968 ”（＂ Brussels Convention ”）； the “EC EFT A Convention on Jurisdiction and the Enforce- 268 国際私法年報第 3 号（ 2001) ment of Judgments in Civil and Commercial Matters, Lugano, 1988 ，” which parallels parallels the Brussels Convention in dealing with international jurisdiction matters; matters; the “EC Convention on the Law Applicable to Contractual Obliga- tions, tions, Rome, 1980 ”（“ Rome Convention ”）； and the “Inte 「 American Conven- tion tion on the Law Applicable to International Contracts. Mexico City, 1994 ” （“ Mexico City Convention ”） ．． I describe the new CLA and briefly review its impact on the legal prac- tice tice as follows. II II Jurisdiction 1. Developments in Case Law In In a series of decisions, the Supreme Court of Korea held that the venue provisions provisions in the Code of Civil Procedure of Korea （“ CCP ”） may be grounds for for Korean courts to establish their jurisdiction over international cases. The Supreme Court declared in its decision (S. Ct 71Da248, April 20, 1972) in con- sideration sideration of Article 6 (Special Venue of Abode or Place of Performance) of the CCP that the Korean court has jurisdiction when the place of performance of obligation obligation is Korea. In another decision (S. Ct 87DaKa1728, Oct 25, 1988), the Supreme Court held that Article 9 (Special Venue of Assets Location) of the CCP may offer grounds for a Korean court to exercise its jurisdiction over international international cases. The Supreme Court also issued a decision (S. Ct 88DaKa3991. Dec. 26, 1989) that that for the 五rst t凶 e accepted “ sound reasoning （“ Jo-Ri")" as a standard for determination determination of jurisdiction. This decision appears to change the traditional mechanical mechanical determination of jurisdiction from an application of the venue provisions provisions of the CCP into a determination based upon sound reasoning, such as as fairness, justice and the promptness of procedure. Such a position has been been maintained by subsequent rulings both in transactional cases and fam- ily ily law matters.<•> 2. Statutory General Principles 〔Kyung-Han Sohn 〕 New Private International Law in Korea 269 A. Statutory Criteria for Jurisdiction The new CLA codifies the standards for determining jurisdiction. Article 2 of of the CLA provides that for a Korean court to have jurisdiction in an inter- national national matter, the parties or the case in dispute must have a substantial connection connection to Korea The substantial connection shall be determined by a reasonableness reasonableness principle aligned with the idea of apportionment of interna- tional tional jurisdiction. The court shall determine its jurisdiction by reference to the the venue provisions of domestic laws such as the venue provision of the CCP, CCP, the Family Case Procedure Act or the Non-Litigation Procedure Act Article Article 2 differs from Ein 釦hrungsgesetz zum Biirgerlichen Gesetzbuch of Germany ("EGBGB ”） or Switzerland ’s Bundesgesetz uber das Internationale Privatrecht Privatrecht （“ IPRG ”） .'3' As the venue provision in the German CCP also ap- plies plies to jurisdiction (Double Function Theory), the private international law provision provision in Chapter 2, the EGBGB does not separately provide for jurisdic- tion. tion. Article 2 of the IPRG provides a general jurisdiction clause, but that clause clause is only applicable when the specific international jurisdiction provision is is not set forth as a separate legal relationship. The legal theory varies greatly greatly from the “minimum contacts ” rule of the United States. Article Article 2 of the CLA applies both in the determination of indirect jurisdic- tion tion for the recognition of foreign judgments and in direct jurisdiction. Since Article Article 2 does not adopt the United States doctrine of “forum non convem 二 ens ，” the interpretation of the doctrine depends on future scholarly opinions and and precedents. Nevertheless. by determining the existence of a substantial connection, connection, the same result may also be achieved indirectly in some excep- tional tional cases. B. Modification of Case Law The CLA may impact some of the above case law regarding jurisdiction. Because Because the CLA expressly states that a substantial connection is required for for exercise of jurisdiction, Korean courts' application of the venue provisions 270 国際私法年報第 3号（ 2001) of of the Korean domestic laws to international cases may be limited. For For example, the Supreme Court held that under Article 4 (General Venue of of Legal Person, etc.) of the CCP, a Korean court has jurisdiction over a for- eign eign company with a branch office in Korea even when the Korean branch is not not involved in the dispute (S. Ct 98Da35037, June 9, 2000). This decision has been been criticized for disregarding the intent of Article 10 of the CCP, which al- lows lows for a special venue only when the dispute concerns the office or a com ・ pany's pany's other place of business. These These Supreme Court precedents may be altered by considering the “sub- stantial stantial connection ” factor rather than applying the venue provisions of the CCP. CCP. In particular, the provisions of Article 6 (Special Venue of Abode or Place of of Performance) '4' and Article 22 (Venue for Correlated Claims) ＇引 of the CCP should should be carefully applied to international cases. C. Party Autonomy in Jurisdiction (1) (1) The CLA also allows for the parties' agreement on jurisdiction as al- lowed lowed under Article 26 (Venue by Agreement) of the CCP. The Supreme Court, Court, however, has held that the prerequisites for a valid agreement on the exclusive exclusive jurisdiction of a foreign court are: (1) that the dispute shall not be under under the Korean courts' exclusive jurisdiction; (2) the foreign courts' juris- diction diction is valid under the corresponding foreign law; and (3) the dispute must have a “connection reasonable ” to the foreign court (S. Ct. 96Da20093, Sep. Sep. 9, 1997). Because the “reasonable connection ”consideration has been criticized, criticized, it is unknown whether the lack of a “substantial connection ” un- der der Article 2 of the CLA would void the agreement on jurisdiction. This un- certainty certainty must be determined by future academic opinions, judicial prece- dents dents and ultimately legislation. In this author's opinion, as international transactions transactions increase and national borders continue to become less meaning- ful, ful, parties' agreement on jurisdiction will not be invalidated simply because the the dispute is not connected to the country unless it would lead to a signifi- cantly cantly unreasonable and unjust result. 附 〔Kyung-Han Sohn 〕 New Private International Law in Korea 271 (2) (2) According to the CLA. in reference to Article 27 (Venue by Appear- ance) ance) of the CCP, jurisdiction created by a defendant's appearance may be allowed. allowed. However, when a plaintiff brings a lawsuit in a jurisdiction with no connection connection to the dispute and the defendant appears in that jurisdiction, an issue issue exists as to whether there is jurisdiction, as that country does not meet the the substantial connection standard of Article 2, assuming that it does not conflict conflict with the exclusive jurisdiction provisions. m Many believe that the CLA allows the jurisdiction by appearance because the defendant ’s conven- ience ience is a consideration in determining a substantial connection. 3. Jurisdiction over Consumer Contract Cases (1) (1) Article 27, Para. 4 of the CLA provides, in certain consumer contract cases, cases, that: (1) in a claim brought by a consumer, the jurisdiction may be given given to the court of the habitual residence of the consumer; (2) in a claim brought brought against a consumer, the jurisdiction shall be allowed only in the court court of the habitual residence of the consumer; and (3) an agreement on ju- risdiction risdiction may be valid only when it is entered into after the dispute has arisen arisen or it if is favorable to the consumer.
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