국내토지관할 규정의 국제적 정합성 -법인의 보통재판적과 영업소 및 재산소재지 특별재판적을 중심으로-

Abstract

In 2001 Korean Private International Law(KPIL) was totally revised to change it's role in legal field. In the past KIPL has handled just applicable law but revised law handles also international jurisdiction. Especially, art. 2 provides principle of international jurisdiction although it is very abstract and codifies mainly stance of the past judicial precedents of the Korean Supreme Court(KSC). However, the KSC has had similar opinion even after the revise of KPIL and sometimes did not obey intent of art. 2. In the event, we could not achieve our goal with KIPL art. 2 because it contains very abstract principle of international jurisdiction and the potential parties could not precisely prognose Korean court's decision about international jurisdiction. Then we need to make specific jurisdiction clauses of international jurisdiction such as domestic jurisdiction clauses in Korean Civil Procedural Law(KCPL). In this article the author wrote about general jurisdiction of judicial person and special jurisdiction of establishment and the site of assets because these clauses have been frequently used for international jurisdiction of foreign corporations. However, these clauses are not suitable for international jurisdiction because these are very discriminative against foreigners and normally use of these clauses has been forbidden in the international agreements and conventions such as Brussels I. In this year Japanese government published a tentative plan for regulation of specific international jurisdiction clauses. Japanese efforts for making specific international jurisdiction clauses are very impressive even if some clauses are very far from international standard, especially they want to maintain special circumstances theory. Korean legal society also has to make a great effort to make specific international jurisdiction clauses and the author wants this article to be used for making it sooner or later.