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국제민사소송절차와 국제도산절차에서의 외국재판 – 외국보전재판의 승인 및 집행가능성을 중심으로 –

Title
국제민사소송절차와 국제도산절차에서의 외국재판 – 외국보전재판의 승인 및 집행가능성을 중심으로 –
Other Titles
A Foreign Decision in the International Civil Litigation and International Insolvency Procedure – Focused on the Recognition and Enforcement of Foreign Provisional and Protective Measure
Author
한충수
Keywords
국제재판관할; 외국재판의 승인 및 집행; 외국보전처분의 승인 및 집행; 외국도산절차의 승인 및 집행; international jurisdiction; recognition and enforcement of foreign decisions; recognition and enforcement of foreign provisional and protective measures; recognition and enforcement of foreign insolvency proceedings
Issue Date
2016-11
Publisher
한국민사소송법학회
Citation
CIVIL PROCEDURE, v. 20, NO. 2, Page. 45-65
Abstract
In 2014 Korean Code of Civil Procedure(KCCP) was revised to enlarge the scope of the recognition and enforcement of foreign decisions. Before the revision, Art. 217 KCCP describes the “foreign judgment” and acknowledged to have the same force shall be recognized for recognition and enforcement. In Korean civil procedural law there are tree types of decisions such as judgment, order and disposition. A judgment shall be rendered by the court(not by judge) and has res judicata. Also ordinarily a judgment needs a trial proceeding. In contrast, order and disposition have not res judicata and do not need necessarily trial proceeding. Through 2014 revision of Art. 217 KCCP and Art. 26 KCCE(Korean Code of Civil Enforcement) not only foreign judgment but also foreign order and disposition shall be included for recognition and enforcement. Now the author calls it “decision” including judgment, order and disposition. However, they did not regulate Foreign Provisional and Protective Measures(FPPM) explicitly and we doubt that FPPM could be included in foreign decisions. In these days provisional and protective measures already become decisive devices for securing debtor’s asset in international business and we should recognize and enforce the FPPM rendered through inter partes proceeding or hearings. According to The Korean Supreme Court’s decisions related with international civil litigations and insolvency cases, we could make a deduction that FPPM could be included in “decisions” for recognition and enforcement reasonably.
URI
http://www.dbpia.co.kr/Journal/ArticleDetail/NODE07069577http://repository.hanyang.ac.kr/handle/20.500.11754/100736
ISSN
1226-7686
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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