외국판결의 승인･집행에 관한 2014년 개정민사소송법･민사집행법의 의의 및 향후 전망 (Analysis and Future Prospect of Recognition and Enforcement of Foreign Judgments under the Korean Civil Procedure Act and Civil Enforcement Act Revised in 2014)

서지정보

· 발행기관 : 한국민사소송법학회
· 수록지 정보 : 민사소송 / 19권 / 1호 / 105 ~ 143페이지
· 저자명 : 이규호

초록

One of the most important issues in connection with recognition and enforcement of a foreign judgment in transnational disputes is whether the requested country is allowed to recognize and enforce the foreign judgment awarding punitive damages. Under the current circumstance where international consensus on this issue have not been reached, it will be decided in accordance with the domestic law of each nation whether the foreign judgment awarding punitive damages should be recognized and enforced.
It also holds true to the Republic of Korea. Another issue will be how the addressed court will deal with injunctions with extraterritorial application, which were issued by a court of another country. The Korean Civil Procedure Act(Act No. 12588, amended on May 20, 2014, effective on May 20, 2014) was amended on May 20, 2014 and came into effect starting from the same day. It intends to reflect the existing case laws. Article 217 and 217 bis of the Korean Civil Procedure Act prescribes as follows: Article 217 (Recognition of a Foreign Judgment) (1) a final foreign judgment or a foreign adjudication which has same preclusive effect as a foreign judgment (hereinafter “a final foreign judgment”) will be recognised if the requirements of all of the following paragraphs are met: 1. That an international jurisdiction of such foreign court is recognisd in the principles of an international jurisdiction pursuant to the Acts and subordinate statutes of the Republic of Korea, or to the treaties; 2. That a defeated defendant received, pursuant to a lawful method, a service of a summons or a document equivalent thereto, and a notice of date or an order, with a time leeway sufficient to defend (excluding the case pursuant to a service by public notice or similar service), or that he responded to the lawsuit even without being served; 3. That such final judgment does not violate good morals and other social orders of the Republic of Korea in the light of its contents and procedure; 4. That there exists a mutual guarantee or that the requirements for recognition of a final foreign judgment in the Republic of Korea and the State of origin are not strikingly out of balance and substantially identical to each other in their material aspects.
(2) a Korean court must make an ex officio examination as to whether the requirements prescribed in Paragraph 1 are met.
Article 217 bis (Recognition of a Final Foreign Judgment Awarding Damages) (1) a Korean court can not recognize all or a part of a final foreign judgment awarding damages when it will result in the outcome which strikingly contravenes the essential orders of the Acts of the Republic of Korea and of the treaties acceded to by the Republic of Korea.
(2) when a Korean court examines the requirement prescribed under paragraph 1, it must take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings.
Also, in line with the amendment of the Korean Civil Procedure Act, the Civil Enforcement Act was revised on May 20, 2014 ( Act No. 12587, amended on May 20, 2014, effective on May 20, 2014). Article 27 of the Civil Enforcement Act amended in 2014 prescribes that: (1) An enforcement judgment shall be made without making any examination as to whether the judgment is right or wrong.
(2) A lawsuit seeking an enforcement judgment shall be dismissed if it falls under any of the following subparagraphs: 1. When it has not been proved that the judgment or other adjudication of a foreign court (hereinafter “foreign judgment”) has become final and conclusive; and 2. When the foreign judgment fails to fulfill the conditions under Article 217 of the Civil Procedure Act.
In this regard, this Article explores how the revised provisions should be interpreted in terms of punitive damages awarded by a foreign court and world-wide injunction issued by a court of another country.

영어초록

One of the most important issues in connection with recognition and enforcement of a foreign judgment in transnational disputes is whether the requested country is allowed to recognize and enforce the foreign judgment awarding punitive damages. Under the current circumstance where international consensus on this issue have not been reached, it will be decided in accordance with the domestic law of each nation whether the foreign judgment awarding punitive damages should be recognized and enforced.
It also holds true to the Republic of Korea. Another issue will be how the addressed court will deal with injunctions with extraterritorial application, which were issued by a court of another country. The Korean Civil Procedure Act(Act No. 12588, amended on May 20, 2014, effective on May 20, 2014) was amended on May 20, 2014 and came into effect starting from the same day. It intends to reflect the existing case laws. Article 217 and 217 bis of the Korean Civil Procedure Act prescribes as follows: Article 217 (Recognition of a Foreign Judgment) (1) a final foreign judgment or a foreign adjudication which has same preclusive effect as a foreign judgment (hereinafter “a final foreign judgment”) will be recognised if the requirements of all of the following paragraphs are met: 1. That an international jurisdiction of such foreign court is recognisd in the principles of an international jurisdiction pursuant to the Acts and subordinate statutes of the Republic of Korea, or to the treaties; 2. That a defeated defendant received, pursuant to a lawful method, a service of a summons or a document equivalent thereto, and a notice of date or an order, with a time leeway sufficient to defend (excluding the case pursuant to a service by public notice or similar service), or that he responded to the lawsuit even without being served; 3. That such final judgment does not violate good morals and other social orders of the Republic of Korea in the light of its contents and procedure; 4. That there exists a mutual guarantee or that the requirements for recognition of a final foreign judgment in the Republic of Korea and the State of origin are not strikingly out of balance and substantially identical to each other in their material aspects.
(2) a Korean court must make an ex officio examination as to whether the requirements prescribed in Paragraph 1 are met.
Article 217 bis (Recognition of a Final Foreign Judgment Awarding Damages) (1) a Korean court can not recognize all or a part of a final foreign judgment awarding damages when it will result in the outcome which strikingly contravenes the essential orders of the Acts of the Republic of Korea and of the treaties acceded to by the Republic of Korea.
(2) when a Korean court examines the requirement prescribed under paragraph 1, it must take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings.
Also, in line with the amendment of the Korean Civil Procedure Act, the Civil Enforcement Act was revised on May 20, 2014 ( Act No. 12587, amended on May 20, 2014, effective on May 20, 2014). Article 27 of the Civil Enforcement Act amended in 2014 prescribes that: (1) An enforcement judgment shall be made without making any examination as to whether the judgment is right or wrong.
(2) A lawsuit seeking an enforcement judgment shall be dismissed if it falls under any of the following subparagraphs: 1. When it has not been proved that the judgment or other adjudication of a foreign court (hereinafter “foreign judgment”) has become final and conclusive; and 2. When the foreign judgment fails to fulfill the conditions under Article 217 of the Civil Procedure Act.
In this regard, this Article explores how the revised provisions should be interpreted in terms of punitive damages awarded by a foreign court and world-wide injunction issued by a court of another country.

참고자료

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