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Private International Law

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Abstract

Private international law (or conflict of laws) is a set of rules of law that determine which court has jurisdiction and which law governs a given legal dispute. It also determines whether, and if so under what conditions, a judgment rendered by a foreign court will be recognized and enforced domestically. Private international law typically applies when a legal dispute has an international element.

Keywords

  • Hague Convention
  • Habitual Residence
  • Consumer Contract
  • Mandatory Rule
  • Unjust Enrichment

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.

    The Law Amending the Conflict of Laws Act became effective as of July 1, 2001 and is still a current version. For a detail procedural history and background of amending the Conflict of Laws Act, see Ministry of Justice (2003), pp. 3–8.

  2. 2.

    Law No. 6465 of April 7, 2001. Note that the terms, conflict of laws and private international law will be used interchangeably in this article.

  3. 3.

    The international jurisdiction was not even dealt with from the old law.

  4. 4.

    The effort to finalize the 1999 Draft Convention failed and instead resulted in adoption of the Convention on Choice of Court Agreements in 2005. Although not yet in force, it will probably be widely ratified. All the world’s major economic powers took part in: the United States, the European Community, China, Japan, Russia, Canada, Australia, Brazil and many others (Hartley 2009, p. 201). However, Korea did not take part in the adoption of the Convention. It is known that the Convention was inspired by the Brussels I Regulation and follows its general provisions.

  5. 5.

    The titles of all chapters and articles in the Act are obtained from Suk (2003b), pp. 315–336, in which a full translation of the Act is separately contributed by Professor K. H. SUK, who is the most distinguished professor of law in the field of private international law in Korea.

  6. 6.

    For a general and comprehensive analysis of international jurisdiction in Korean language, see K. H. Suk,「국제사법 해설」 p. 32 et seq.

  7. 7.

    Act No. 9171, December 26, 2008.

  8. 8.

    K. H. SUK,「국제사법 해설」 pp. 43–44.

  9. 9.

    Decision of 2007. 8. 30, 2006가합53066 (Seoul Central District Court).

  10. 10.

    Jori means ‘nature of the thing.’

  11. 11.

    Decision of 1992. 7. 28, 91다41897 (the Supreme Court of Korea) and Decision of 1995. 11. 21, 93다39607 (the Supreme Court of Korea).

  12. 12.

    K. H. SUK,「국제사법 해설」 pp. 40–41.

  13. 13.

    This is also the same principle that can be found from Article 1 of the Korea Civil Procedure Act (“KCPA”).

  14. 14.

    Decision of 2005. 01. 27, 2002다59788 (the Supreme Court of Korea).

  15. 15.

    These provisions can be found from the KCPA, Articles 2 through Article 40.

  16. 16.

    Kwon (2007), p. 125.

  17. 17.

    As for the concept of domicile and its different meaning from habitual residence, refer to Chapter IV, A. General Provisions, 2. habitual residence as a new connecting factor.

  18. 18.

    KCPA, Art. 2.

  19. 19.

    KCPA, Art. 3.

  20. 20.

    KCPA, Art. 7.

  21. 21.

    KCPA, Art. 8.

  22. 22.

    KCPA, Art. 11.

  23. 23.

    KCPA, Art. 18.

  24. 24.

    KCPA, Art. 21.

  25. 25.

    Ministry of Justice (2003) p. 25.

  26. 26.

    The Act, Art. 27(4).

  27. 27.

    Ministry of Justice (2003) pp. 100–101; K. H. SUK, 「국제사법 해설」, p. 239.

  28. 28.

    The Act, Art. 27(5).

  29. 29.

    Ministry of Justice (2003) p. 101; K. H. SUK, 「국제사법 해설」, p. 240.

  30. 30.

    The Act, Art. 27(6).

  31. 31.

    The Act, Art. 28(3).

  32. 32.

    This is the meaning of the words, “is or was situated.” Trevor, p. 68.

  33. 33.

    The Act, Art. 28(4).

  34. 34.

    Act No. 9525, March 29, 2009.

  35. 35.

    These arbitral awards are governed by Articles 26 and 27 of the KCEA only if they are not subject to the Convention on Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). Since Korea is a contracting state to the New York Convention, recognition and enforcement of most foreign arbitral awards will be regulated by the New York Convention.

  36. 36.

    Suk (2002), pp. 345–346.

  37. 37.

    Lee (2006), p. 115–116.

  38. 38.

    K. H. SUK, 「국제사법과 국제소송 I」, p. 265.

  39. 39.

    KCPA, Art. 217(1).

  40. 40.

    K. H. SUK, 「국제사법과 국제소송 I」 p. 296; Lee (2006), p. 117.

  41. 41.

    KCPA, Art. 217(2).

  42. 42.

    Kwon,“Litigating in Korea” p. 141.

  43. 43.

    Cf. Committee on Foreign and Comparative Law, Association of Bar, City of N.Y., Survey on Foreign Recognition of U.S. Money Judgments (July 2001) (reciting from L. S. Hoon, p. 126).

  44. 44.

    Lee (2006), p. 133. (Decision of Oct. 28, 2004, 2002다74213 (the Supreme Court of Korea).

  45. 45.

    KCEA, Art. 26(1).

  46. 46.

    KCEA, Art. 26(2).

  47. 47.

    KCEA, Art. 27(1).

  48. 48.

    K. H. SUK, 「국제사법 국제소송 I」 p.348.

  49. 49.

    KCEA, Art. 27(2).

  50. 50.

    This is when the applicable law is a foreign law, and it is difficult to ascertain the foreign law.

  51. 51.

    This question regards the problem of renvoi.

  52. 52.

    This question is a matter of public policy.

  53. 53.

    Of course, the jurisdictional matters in Articles 2, 27 and 28 of the Act are not subject to the General Provisions here.

  54. 54.

    The Act, Art. 3(1).

  55. 55.

    Id.

  56. 56.

    The Act, Art. 3(2).

  57. 57.

    Ministry of Justice (2003) p. 29.

  58. 58.

    The Act, Art. 4.

  59. 59.

    K. H. SUK,「국제사법 해설」p. 81.

  60. 60.

    Id.

  61. 61.

    Scoles et al. (2004), §4.14.

  62. 62.

    K. H. SUK,「국제사법 해설」p. 85–86.

  63. 63.

    Decision of 2008. 1. 31, 2004다26454 (the Supreme Court of Korea); Decision of 2010. 3. 25, 2008다88375 (the Supreme Court of Korea).

  64. 64.

    Act No. 9374, January 30, 2009.

  65. 65.

    Act No. 9630, April 22, 2009.

  66. 66.

    K. H. SUK,「국제사법 해설」p. 90.

  67. 67.

    Article 7 of the Act modeled after Article 18 of Swiss PIL Act (this Code does not prevent the application of those mandatory provisions of Swiss law which, by reason of their particular purpose, are applicable regardless of the law designated by this Code), and Article 7(2) of the Rome Convention. (“Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract.”)

  68. 68.

    This type of law is also referred to ‘overriding mandatory provisions’ under Article 9(1) of the Rome Regulation I (Regulation 593/2008), which are “provisions, the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation”. The Rome Regulation I was negotiated during 2007, and formally adopted on 17 June 2008. It came into force August of 2008 and applies to contracts concluded after 17 December 2009. Contracts concluded prior to that date will still be governed by the Convention. (Hartley, p. 571).

  69. 69.

    Lex causae refers to the law that would be applicable in the absence of choice of law by the parties. (Scoles, §18.4 p. 957).

  70. 70.

    Act No. 9554, March 25, 2009.

  71. 71.

    Suk (2003b) p. 110. (Although it is not expressly mentioned, Article 6 of the Act deals with international mandatory rules pertaining to lex causae. Under Article 6, one may argue that international mandatory rules of lex causae should apply as part of lex causae.)

  72. 72.

    K. H. SUK, 「국제사법 해설」 pp. 102–104.

  73. 73.

    Renvoi means in French ‘sending back’.

  74. 74.

    Article 51(1) of the Act provides that the capacity of a person who assumes obligations under a bill of exchange, promissory note or check shall be governed by lex patriae of such person. If lex patriae provides that such capacity shall be governed by the law of another country, the law of that country shall apply.

  75. 75.

    For further in depth analysis thereof, refer to K. H. SUK, 「국제사법 해설」, pp. 113–115.

  76. 76.

    The Act, Art. 25(1).

  77. 77.

    Decision of 1997. 9. 9, 96다20093 (the Supreme Court of Korea).

  78. 78.

    Trevor, p. 567.

  79. 79.

    UNIDROIT stands for “International Institute for the Unification of Private Law.”

  80. 80.

    Trevor, pp. 573–574.

  81. 81.

    This means that it is a purely domestic contract.

  82. 82.

    This rule is derived from Article 3(3) of the Rome Convention. Article 3(3) of the Rome Convention was apparently the result of a compromise. Some delegations wanted the Convention to provide that the parties could not make a valid choice of law in the case of a purely domestic contract; the delegates, notably that of the United Kingdom, were opposed to this limitation on the parties’ freedom of choice. The compromise was to allow a free choice, but not to exclude the ordinary mandatory rules from the operation of the choice of law. (Trevor, p. 601).

  83. 83.

    Suk (2003b), p. 123.

  84. 84.

    Philip (1982) at p. 95 (recitation from Trevor, p. 601).

  85. 85.

    Trevor, p. 581.

  86. 86.

    Id.

  87. 87.

    The Act, Art. 26(2).

  88. 88.

    Id.

  89. 89.

    This place of business refers to the place of the branch office.

  90. 90.

    Id.

  91. 91.

    Although the Act does not specifically mention, it should be consistently interpreted with the Rome Convention, Article 4, paragraph 5.

  92. 92.

    The contents of this sentence are similar to the Rome Convention, Article 4, paragraph 5; however, this paragraph was not adopted in the Act because the general exception clause under Article 8 of the Act applies. From the author’s perspective, it would be better to specifically include this rule in Article 26, not only because the parties may miss the general exception clause under Article 8, but because this rule may be able to clarify the presumption which is always rebuttable if possible.

  93. 93.

    Trevor, pp. 581–582.

  94. 94.

    The Rome Convention, Article 4, paragraph 3.

  95. 95.

    These mandatory rules cannot be derogated from by agreement, and should be distinguished from the international mandatory rules under Article 7 of the Act. (Ministry of Justice (2003), p. 99–100).

  96. 96.

    Suk (2003b), p. 125.

  97. 97.

    Contracts relating to the provision of ordinary goods and services intended for the personal or family use of the consumer and which are not associated with the professional or commercial activities of the consumer shall be governed by the law of the state in which the consumer habitually resides:(a) If the supplier received the order in that state; (b) If the conclusion of the contract was preceded in that state by an offer or an advertisement and the consumer performed there the necessary acts to conclude the contract; or (c) If the consumer was induced by the supplier to go abroad to place his/her order there.

  98. 98.

    Suk (2003b), p. 125.

  99. 99.

    The Act, Art. 28(2).

  100. 100.

    Like Article 27, these mandatory rules cannot be derogated from by agreement, and should be distinguished from the international mandatory rules under Article 7 of the Act. (Ministry of Justice (2003), pp. 104–5).

  101. 101.

    Decision of 1983. 3. 22, 82다카1533 (the Supreme Court of Korea); Decision of 1985. 5.28, 84다카966 (the Supreme Court of Korea).

  102. 102.

    Decision of 2002. 5. 23, 99가합84123 (Seoul District Court); Decision of 2006. 1. 26. 2002나32662 (Seoul High Court).

  103. 103.

    K. H. SUK,「국제사법 해설」pp. 286–287.

  104. 104.

    K. H. SUK,「국제사법 해설」p. 291.

  105. 105.

    Note that it is not the parties’ nationality here.

  106. 106.

    Suk (2003b), p. 128.

  107. 107.

    The Act, Art. 33.

  108. 108.

    The Act, Art. 33.

  109. 109.

    The Act, Art. 19(1).

  110. 110.

    The Act, Art. 19(2).

  111. 111.

    Ministry of Justice (2003), p. 81; K. H. SUK,「국제사법 해설」p. 179.

  112. 112.

    Suk (2003b), p. 119.

  113. 113.

    Suk (2003b), p. 120.

  114. 114.

    Determining the governing law raises a difficult issue if the two places of relevant intermediary are different, i.e., the place where the rights of the security interest provider are registered and the place where the rights of the security interest holder are registered (Reciting from Suk (2003b) p. 120).

  115. 115.

    Id.

  116. 116.

    Suk (2003b) p. 121.

  117. 117.

    Trevor, pp. 288–289.

  118. 118.

    The Act, Art. 24.

  119. 119.

    Ministry of Justice (2003), pp. 86-7; K. H. SUK,「국제사법 해설」p. 191.

  120. 120.

    Ministry of Justice (2003), p. 87; K. H. SUK,「국제사법 해설」p. 194.

  121. 121.

    The Act, Art. 34(1), first sentence.

  122. 122.

    K. H. SUK,「국제사법 해설」p. 303.

  123. 123.

    The Act, Art. 34(1), second sentence.

  124. 124.

    The Act, Art. 35(1), first sentence.

  125. 125.

    The Act, Art. 35(1), second sentence.

  126. 126.

    The Act, Art. 35(2).

  127. 127.

    Suk (2003b) p. 130.

  128. 128.

    The Act, Art. 36(1).

  129. 129.

    The Act, Art. 36(2).

  130. 130.

    The Act, Art. 36(2).

  131. 131.

    The Act, Art. 37.

  132. 132.

    Ministry of Justice (2003), p. 133; K. H. SUK,「국제사법 해설」p. 318.

  133. 133.

    The Act, Art. 38(1).

  134. 134.

    The Act, Art. 38(2).

  135. 135.

    Ministry of Justice (2003), p. 137; K. H. SUK, 「국제사법 해설」p. 324.

  136. 136.

    The Act, Art. 39.

  137. 137.

    The Act, Art. 41(1).

  138. 138.

    Suk (2003b) p. 134.

  139. 139.

    The Act, Art. 46(1).

  140. 140.

    For more details on the Convention, see Scoles (1994).

  141. 141.

    The Act, Art. 50(2).

  142. 142.

    The country of the ship’s registration should be distinguished from the countries of, the flag or the home port, of a ship.

  143. 143.

    The Act, Art. 60

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Chung, H. (2013). Private International Law. In: Introduction to Korean Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31689-0_9

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