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Rules on International Jurisdiction to Adjudicate under the 2018 Draft of the Korean Private International Law Act Amendment: Focus on the Special Provisions

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2018, (23), pp.41-146
  • DOI : 10.31839/ibt.2018.12.23.41
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : September 27, 2018
  • Accepted : October 23, 2018

Suk, Kwang Hyun 1

1서울대학교

Accredited

ABSTRACT

In June 2014, the Korean Ministry of Justice established a committee (“the Committee”) in charge of amending the Korean Private International Law Act with the aim of introducing detailed rules on international jurisdiction to adjudicate. A draft amendment bill (“the Draft”) was prepared and finally on 19 January 2018, prior legislative notice has been given to the public. The most important aspect of this Draft is that it includes meticulous rules on international jurisdiction to adjudicate, which are among the most fundamental issues in international civil litigation, in order to enhance predictability for the courts and for the parties to the litigation. However, as a means to ensure concrete adequacy in individual cases, the Draft accepts under strict requirements the common-law doctrine of forum non conveniens. In sum, the Draft aims, on the one hand, to reinforce legal certainty by introducing detailed rules on international jurisdiction, and on the other, to ensure concrete adequacy in individual cases by allowing courts discretion. In this article, the author briefly presents the major contents of Chapters 2 to 10 of the Draft following the order of the articles. The specific order of discussion is as follows. First, the author examines the structure of the body of rules of international jurisdiction (Chapter Ⅱ), then, discusses each of the special provisions on cases related to person (Chapter Ⅲ), to rights in rem (Chapter Ⅳ), to intellectual property rights (Chapter Ⅴ), to claims (Chapter Ⅵ), to family law (Chapter Ⅶ), to inheritance (Chapter Ⅷ), to promissory notes, bills of exchange and checks (Chapter Ⅸ) and on maritime cases (Chapter Ⅹ), as well as the other rules of international jurisdiction (Chapter Ⅺ), the time of examination and judgment of international jurisdiction issues (Chapter Ⅻ), the practical meaning of the introduction of international jurisdiction rules (Chapter ⅩⅢ) and the future tasks regarding the amendment of the Korean Private International Law Act (Chapter XIV ), and lastly the author comments on the work and operation of the Committee (Chapter XV). The important task for the Korean courts is to understand the purposes of the Draft, and to apply the rules therein appropriately. According to the Draft, the courts are no longer allowed to make conclusions based on the so-called “case-by-case analysis”, and they are required to first determine whether they have international jurisdiction by applying the international jurisdiction rules of the Draft. Moreover, even when their international jurisdiction is admitted, Korean courts must faithfully implement the idea of the allocation of international jurisdiction by declining to exercise jurisdiction when there exists an exceptional circumstance rendering such exercise inappropriate in the case concerned.

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