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Jong Hyeok Lee, New Developments in Korean Private International Law (2024)

아태법
2024-05-24
조회수 40

Jong Hyeok Lee, ''New Developments in Korean Private International Law'', Private International Law in East Asia: From Imitation to Innovation and Exportation (2024),pp.107-122.


<Introduction> 

Private international law was fi rst introduced to Korea as part of the Eurocentric international legal order known as Mangukgongbeob [萬國公法] in the late nineteenth century. Since 1905, the subject has been an integral part of the curriculum at the Judicial Officer.  Training School ( Beopgwanyangseongso [法官養成所]). In 1908, Yu Mun-Hwan [劉文煥], a professor at the School, published the first Korean textbook on private international law. However, the development of Korea ’ s independent code and jurisprudence in this field was interrupted from 1910 to 1945 due to the imposition of Japanese colonial rule. 

Progress resumed in 1962 with the enactment and enforcement of Korea ’ s Extra-National Private Law ( Seoboesabeop [涉外私法], hereinaft er the ‘ KENL ’ ). Modelled after Japan ’ s Law.Concerning the Application of Laws in General ( Horei [法例]), the KENL reflected the significant influence of Gebhard ’ s draft ( Gebhardsche Entw ü rfe ) of 1887 on both Korea and Japan. This influence continued until 2001 when Korea, preceding Japan and China, became the first country in East Asia to enact legislation on private international law ( Gukjesabeop[國際私法], hereinaft er the ‘ 2001 KPIL ’ ) that deviated from Gebhard ’ s draft and incorporated provisions on international jurisdiction and applicable law within the same code. During the process of independently legislating from 1999 to 2001, Korea prioritised international consistency and drew inspiration from various sources, including the regimes of the Hague Conference on Private International Law and the EU, notably the Rome Convention on the. Law Applicable to Contractual Obligations (hereinafter the ‘ Rome Convention ’ ), as well as domestic legislations of European countries, with a particular emphasis on Switzerland. Inspired by Switzerland ’ s comprehensive model, the 2001 KPIL stipulated provisions on international jurisdiction and applicable law together, and, within its Chapter of General Principles, included the provision on the application of overriding mandatory rules (Article 7) and the general exception clause (Article 8).

In 2014, Korea re-initiated a revision process to establish a more comprehensive framework on international jurisdiction. The revision goes beyond the previous legislation with only three provisions concerning international jurisdiction: one provision declares the general principle of a substantial relationship between Korea and the parties or the dispute (Article 2); and two others cover the special rules for consumer contracts and employment contracts (Articles 27 and 28). Th e introduction of a new law consisting of 36 new articles that cover the entirety of private legal relationships offi cially came into eff ect on 5 July 2022 (hereinaft er the ‘ 2022 KPIL ’ ) and marks a significant milestone in the Korean legal system. 

The following description examines the recent advancements in Korean private international law, focusing on the ‘challenges and responses’ to foreign legislation, precedents and jurisprudence.


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