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Commentary on the 2019 Supreme Court Judgment that correctly applied Article 2(2) of the Private International Law Act: with a Focus on General Jurisdiction and Special Jurisdiction based upon Location of Property

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2020, (29), pp.131-168
  • DOI : 10.31839/ibt.2020.04.29.131
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : March 31, 2020
  • Accepted : April 21, 2020
  • Published : April 30, 2020

Suk, Kwang Hyun 1

1서울대학교

Accredited

ABSTRACT

In this article, the author comments on the Supreme Court judgment (“Judgment”) of June 13, 2019, Docket No. 2016Da33752. This is a rather unusual case in that the dispute was over whether the Korean courts have international jurisdiction over lawsuits between Chinese individuals. The first instance court denied Korea’s jurisdiction over the case, while the Appeal Court and the Supreme Court of Korea affirmed it. The author writes the present commentary because the Judgment deserves our attention in light of the following. First, the purpose of Article 2(2) of the Private International Law Act of Korea (“KPILA”) (Chapter III). Second, the international general jurisdiction taking into account the provisions of the Civil Procedure Act setting forth the generally-affiliating basis for venue (Chapter IV). Third, the requirements for the recognition of special jurisdiction based on the location of property in Korea (Chapter Ⅴ). Fourth, the meaning of predictability for lawsuit in Korea (Chapter VI). Fifth, the Judgment’s implication for the doctrine of forum non conveniens (Chapter Ⅶ). The Supreme Court of Korea (“KSC”) has rightly interpreted the meaning of Article 2(2) of the KPILA. In the Judgment, the KSC departed from the past attitude that adhered to the formula “venue rules = international jurisdiction rules” while giving equal value to all venue rules, and classified the venue rules of the Civil Procedure Act into (i) rules that can be used as international jurisdiction rules and (ii) those that can be used as international jurisdiction rules subject to modification. In addition, the KSC classified the general venue rules under Articles 2 and 3 of the KCPA as belonging to the former category, while classifying the special venue rules under Article 11 of the KCPA as belonging to the latter category, while making suggestions on to how to modify the latter. In the past, KSC judgments merely referred to Article 2(2) of the KPILA, and decided whether the case at hand has a substantial connection with Korea and whether Korean courts have international jurisdiction after only enumerating various factors of the case without actually considering the venue rules of the CPA, thereby violating Article 2(2) of the KPILA. In contrast, the Judgment correctly applies Article 2(2) of the KPILA and provides specific guidelines, and it is the first to do so among KSC judgments. The author welcomes the Judgment in that it is consistent with the view which the author has been suggesting. Pending the revision of the KPILA, the author truly hopes that the KSC will continue to render good judgments under Article 2(2) of the KPILA in the future, using the Judgment as a turning point.

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