국제민사소송의 국제적인 흐름과 우리의 입법과제

Abstract

The advanced countries and the Hague Conference have endeavored in vain to harmonize civil procedure rules of individual countries. In contrast EU members have succeeded in making harmonized regulation for International jurisdiction(Brussels I Regulation). And then a individual country, such as Japan and Korea, has to make own principles for international jurisdiction. However, Japan has no own principles for international jurisdiction and Japanese courts have developed the theory of special circumstances. First of all, they consider their own domestic jurisdiction clauses for international cases. When special circumstances exist, such that the exercise of jurisdiction by Japanese courts would hamper fairness between parties and hinder the ability of the parties to receive a speedy and fair trial, jurisdiction could be denied. Thus, Japan’s highest court has established a three-step framework to determine whether it has jurisdiction over a dispute: (1) Justice(Jori) (2) provisions of the domestic Code (3) the special circumstances test.Korean courts were deeply affected by this Japanese theory developted by Japanese courts. But this theory basically relied on domestic jurisdiction clauses which would be inappropriate for international cases and jurisdiction. In the event Korean Code of International Private Law(KCIPL) was revised to make new international jurisdiction clauses for international cases(KCIPL Art. 2). But this clause just reflects precedents and is very abstractive. At that time the revision was transitory and international jurisdiction clauses should be made specifically for each case. However, additional revision was not made and Korean courts almost have not been changed since new clause had been made. In contrast to Korean situation, Japanese government started to make new specific clauses for international case and these new clauses will be included in revised civil procedure code of Japan in 2010. These rapid changes in Japan could be good model to Korean legislation and we have to analyze the new Japanese clauses to make our own new clauses in the near future. This article will treat these rapid changes in Japan to suggest our stance for reform of our Korean Code of Civil Procedure.