KJCKorea
Journal Central

The task of private international law is to resolve conflicts of legal orders that arise in legal relationships with foreign elements. Its main themes are first, the determination of international jurisdiction, second, the designation of applicable law, and third, the recognition and enforcement of judgments made by foreign courts. Since the second topic deals with the designation of law applicable to a certain legal relationship or legal issue, that area of private international law (i.e., private international law in its narrow sense) is also called “referral norms (Verweisungsnorm)”. In recent years, however, the concept of recognition of legal situations created in foreign countries without control over the applicable law has spread in the European Union. This is an issue which arose upon the impact of the “country-of-origin principle”, initially created with public law obligations under the EU’s primary law and the e-commerce guidelines in mind, on private international law. This is called “recognition of legal situations” or “recognition in lieu of designation of applicable law”. In other words, the issue is whether recognition of legal situations is a new method of private international law that replaces or supplements the designation of applicable law as a method of resolving conflicts of norms. In this regard, the vested rights theory derived from Huber of the 17th century Dutch school is receiving new attention. In particular, the EU Court of Justice has, in the two areas of private international law concerning name and company, derived the principle of recognition of legal situations created in other Member States from the fundamental freedoms under the primary law (Rome Treaty and TFEU). As a phenomenon resulting from the restrictions imposed on the sovereignty of the Member States in the course of their transition from independent countries to members of the legal community of the European Union, recognition of legal situations is reminiscent of the Full Faith and Credit Clause of the US Constitution, and we also need to monitor the future progress further. In this article, the author deals with several issues in the following order: the traditional methods for resolving international conflicts of norms (Chapter Ⅱ), the recognition of legal situations discussed in the European Union (Chapter Ⅲ), a historical review of the vested rights theory (Chapter Ⅳ) and the European academia’s responses to the recognition of legal situations (Chapter Ⅴ), the examples of private international law rules adopting the recognition of legal situations principle (Chapter Ⅵ), the meaning and implications of the recognition of legal situations for Korean private international law (Chapter Ⅶ), and concluding remarks (Chapter Ⅷ). These discussions provide us with an opportunity not only to understand recent changes of private international law of the European Union which is at the root of Korean private international law, but also to revisit the basic structure of Korean private international law and to find implications for Korean private international law. In addition, by examining Huber’s theory focusing on sovereignty and comity and the vested rights theory, we can better understand the elaborate logical structure of private international law and the value of historical analysis in its study. Unlike in the European Union where a multi-layered system applies, in Korea, where there is no external high-level norm, in principle, designation of the applicable law is appropriate. However, as seen in the Hague Adoption Convention, the jurisprudence of recognition of the legal situation can be introduced through international norms within a limited range such as those on personal status. In addition, although legal situations created in a foreign country that are contrary to the applicable law designated by the Korean Private International Law Act may not be recognized in Korea, the author submits there may be room for an exception if insisting on such a conclusion will lead to unfair results violating the Constitution and human rights law of Korea.

Since 2014, China's cross-border e-commerce has ushered in explosive development, constantly going deep into all aspects of people's daily life and providing convenience for people's life. When China sees the contribution of cross-border e-commerce to economic development, it should also pay attention to the tax problems brought by cross-border e-commerce. This problem mainly includes: in cross-border e-commerce transactions, enterprises set up virtual business institutions and places, resulting in unclear judgment standards for tax subjects; In cross-border e-commerce transactions, due to the trend of digitization and virtualization of goods, the qualitative classification standard of enterprise income is not clear, and it is difficult to classify enterprise income qualitatively; And because cross-border e-commerce is a new thing, the original tax management model lags behind. By combining the relevant legal provisions of China's enterprise income tax law and the tax collection and administration law, and analyzing the characteristics of China's cross-border e-commerce at present, this paper puts forward relevant suggestions on the tax problems of cross-border e-commerce: in view of the unclear judgment standard of tax subject, it is necessary to introduce the concept of real or virtual subject into the enterprise income tax law, Broaden the identification scope of enterprise institutions and places; In view of the unclear qualitative classification standard of enterprise income, it should be judged on the basis of the traditional qualitative classification standard of income, supplemented by the standards of contract type and transaction purpose; In view of the lag of the tax collection management mode, the tax registration system applicable to cross-border e-commerce should be stipulated and improved in the tax collection management law, the tax declaration system should be improved, and the legal liability should be strengthened.

The Incoterms rules are well known throughout the whole world and they are the most commonly used trade terms by the parties, lawyers and courts. ICC updates the Incoterms rules almost every 10 years to reflect modern commercial practice. The latest version of the ICC Incoterms 2020 entered into force on 1 January 2020. The 2020 revision made several significant modifications to the earlier terms. Incoterms 2020 now provides for an additional option. Buyer and seller may instruct the carrier to issue a bill of lading to the seller after loading the goods, and the seller may agree that it is obligated to bid the bill of lading to the buyer, usually through the bank. In this article, the author briefly reviews the revisions of Incoterms 2020 and examines unsolved problems on FCA rule. Examining the reasons for the revision disclosed by ICC, it is doubtful whether they are properly understanding the reality of L/C transactions on FCA.