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Rules on International Jurisdiction to Adjudicate under the 2018 Draft of the Amended Private International Law Act: with a Focus on its General Parts

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2018, (21), pp.41-126
  • DOI : 10.31839/ibt.2018.04.21.41
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : March 31, 2018
  • Accepted : April 26, 2018

Suk, Kwang Hyun 1

1서울대학교

Accredited

ABSTRACT

In order to introduce detailed rules on international jurisdiction to adjudicate the Ministry of Justice of Korea (“KMOJ”) had established in June of 2014 a committee (Committee) in charge of amendment of the Private International Law Act of Korea (“KPILA”) and the Committee made efforts to prepare a draft of amended KPILA. Unfortunately, however, the Committee could not complete its mission of preparing a draft. Afterwards the KMOJ prepared a draft of the amended KPILA (“Draft”) and made a prior legislative notice to the public on January 19, 2018. The greatest significance of the Draft is that it has introduced detailed rules on international jurisdiction, which is one of the most fundamental issues in international litigation, which ensures predictability of the courts and the parties to the litigation. However, the Draft has accepted under strict requirements the doctrine of forum non conveniens as understood under Anglo-American law as a means to ensure concrete validity in individual cases. In sum, the Draft aims to enhance legal certainty by introducing detailed rules on international jurisdiction on the one hand, and to ensure concrete validity in individual cases at the same time by allowing the discretion of the courts on the other hand. In this article the author briefly explains major contents of the general parts of Chapter 1 of the Draft following the order of the articles. Article 2 (general rules), Article 3 (general jurisdiction), Article 4 (special jurisdiction of place of business office), Article 5 (special jurisdiction based upon presence of property), Article 6 (jurisdiction based upon relationship), Article 7 (jurisdiction of counter-claim), Article 8 (jurisdiction agreement), Article 9 (appearance), Article 10 (exclusive jurisdiction), Article 11 (lis pendens), Article 12 (decline of international jurisdiction), Article 13 (exclusion of application), Article 14 (jurisdiction of interim measures) and Article 15 (jurisdiction of non-contentious matters). It should be noted that jurisdictional rules will need to be adapted to the change of time. In order to do that we need to review the issues arising from concrete court precedents to be accumulated with time and at the same time to ensure the consistency with jurisdictional rules at the international level and those of other countries.

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