판례 평석

‘실질적 관련’은 어디까지인가? - 국제재판관할권 판단 기준에 관한 대법원 2010. 7. 15.


‘Substantial Connection'? - A Comment on the Standard for International Jurisdiction under the Korean International Private Law in its Supreme Court case


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This is a comment on Case No. 2010da18355 of the Korean Supreme Court, which was decided on July 15, 2010. The paper mainly focuses on how to define the concept of 'substantial connection(s)' as a basic standard to determine whether a Korean court has international jurisdiction over a foreign-related case, which one or both parties is(are) alien(s), and/or subsequently, whether the court may excercise its jurisdiction over the case.
The legal basis is Article 2 of the Korean International Private Law(KIPL) enacted in 2001, and other related provisions of the Korean Civil Procedure on jurisdiction or venue.
The case at hand was brought by parents of one of the deceased flight attendants employed by the foreign defendant, Air China, of which plane was crashed into a hill near Busan, Korea, killing 129 of 166 passengers (Koreans as well as Chinese) and the defendant's employees on board, on April 15, 2002. The parents continued their lawsuit in Korea against the defendant, requesting for damages based on the employment contract between the deceased employee and the defendant, and on tort occurred in Korea.
The court reviewed whether it was competent to hear the case, by considering factors related to some theories or ideals, including fairness, equality between parties, speedy trial, etc., on how to allocate jurisdiction among courts in different countries, which might derive from some domestic theories on selecting venues among other domestic courts. The trial court rejected its jurisdiction, holding that this case is "substantially connected" to China, since the two parties are the Chinese corporation and nationals.
When it reached the Supreme Court, the Court granted jurisdiction on Korean courts, and remanded the case to the trial court for further review on the merits.
The main argument of this paper is whether the Korean court has substantial connections with parties or with the legal dispute, and how to define the term, 'substantial connections' after considering relevant international factors on rules of jurisdiction and even those of choice of law.
The paper looks over how the concept of 'substantial connection' was introduced to the KIPL, and implemented in its courts' rulings, especially in this case. One of the major references for 'substantial connection' is the rule of U.S. jurisdiction, "minimum contacts," of which backgrounds and development will be slightly mentioned, in order to search for how the 'substantial connection' concept can be understood or applied to our future Korean cases. Then, the paper focuses on the legal analysis by the Supreme Court case to look for better legal guidelines to exercise jurisdiction by the Korean courts over the foreign-related cases in the future.


I. 들어가며
 II. 대상판결의 사안 및 하급심의 국제재판관할권 판단 기준
  1. 대상판결의 사안의 개요 및 소송의 경과
  2. 제1심 법원의 국제재판관할권의 논점
 Ⅲ. 대상판결의 국제재판관할권 논점
  1. 대상판결의 국제재판관할권에 대한 판결 요지
  2. 대상판결의 국제재판관할권에 대한 논점 정리
  3. 대상판결의 국제재판관할권에 대한 논점에 대한 평가
 Ⅳ. 연구
  1. ‘실질적 관련’이란?
  2. 국제사법상의 국제재판관할규칙
  3. 대상판결의 국제재판관할권 판단 기준에 대한 논평
 V. 나가며


  • 최영란 Choi, Young-Ran. 원광대학교 법학전문대학원 조교수, 원광대학교 법학연구소 연구위원.


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