독점규제법과 지적재산권과의 관계에 관한 재고찰

손경한(Kyung-Han Sohn),정진근(Jin-Keun Jeong) 한국비교사법학회 2005 比較私法 Vol.12 No.2

Due to the difference in purpose and function between the intellectual property law and anti-competition law, they have enjoyed harmonious and confrontational relationship over the years. The relationship between the two laws have been developed through case law in the U.S., which started with the per se rule in Nine No-No’s case in 1970 to the current rule of reason. These rules reserve the possibility of the anti-competition law being directly implemented into the intellectual property law, and we are now confronted with the danger of having the purpose and concept of intellectual property being obstructed. Due to this reason, many doctrines regarding the relationship between the intellectual property law and anti-competition law have been proposed in Germany, Japan and our country. In Korea, there are currently lot of different interpretation surrounding Article 59 of the Anti-Competition Act, with the doctrine which distinguishes between the substantial right and non-substantial right being popular opinion. However, the attitude of such popular opinion shows that the danger of anti-competition law being fully implemented to the intellectual property law system still exists. There are also criticisms that standard of determining exercise of justifiable rights is ambiguous, and that above theory only applies to license enforcement agreements. Therefore, to protect the purpose and the spirits of the intellectual property law whilst restricting the anti-commercial effect, feared by the anti-competition law, a duty, which restricts the exercising of rights under the intellectual property law must be endowed, and compulsorylicense, fair use doctrine and the doctrine of prohibition of misuse of rights (under civil law) must be applied. The anti-competition law should only have limited application on exceptional cases - misuse of market dominance status, unfair public behavior and unfair trade practices. These doctrines have greater potential, as they can be used in the newly developing technology co-operation field, such as technical standard and patent pool. In order to protect the public interest, technical standard must operate under the compulsory license system. Also, if a patent pool constitutes the technical standard, then the patent pool must also be operated under the compulsory license system, due to the same reason. As it can be seen above, intellectual property law has many other features than other property laws, which must be recognized. Firstly, the basic principles of civil law must apply to the intellectual property law, with anti-competition law being implemented as a supplementary law. Such application will promote competitive environment, and will also assist in achieving the purpose of the intellectual property law.

국제건설계약상 청구보증에 관한 영국법계 판례의 발전 - 비양심성 법리를 포함하여 -

손경한(Kyung-Han Sohn),최성규(SungKyu Choi) 동아대학교 법학연구소 2021 國際去來와 法 Vol.- No.33

Demand guarantee is widely used in international construction contracts and ship building contracts. However, if the claim guarantee is abused, it will hurt the debtors liquidity and credit, while depriving the beneficiary of the demand guarantees rights will also hurt the beneficiarys liquidity. There are many cases in which the law on compliance with construction contracts and demand guarantees is made into English law or the law of English law countries, so it is necessary to review the case and the development of legal principles. We examine the use cases of demand guarantees in international construction and review the development of British and British law-based countries, especially Singapore, on the requirements for demand guarantees, the independent abstractness of demand guarantees and their exceptions, the parties to the prohibition of payment to demand guarantees, and the requirements for the prohibition of payment to demand guarantees. It is necessary to fully understand and cope with the obligations of the right to comply with the law, mainly from the standpoint of a construction company or a shipbuilding company that is a client of a demand guarantee, and that the beneficiary or guarantee bank shall be subject to a payment ban or provisional disposition on the beneficiary or guarantee bank upon claim of the deposit. Unconscionable conduct is well recognized in Singaporean and Australian jurisdictions as a ground for restraining the beneficiary calling under an on-demand guarantee. An on-demand guarantee is provided by an issuer to guarantee that the applicant will meet obligations owed to the beneficiary. Since Singapore Court of Appeal tends to recognized the exclusion clauses of the doctrine of unconscionability from the restriction of the demand guarantee calling, the contractor should allow the doctrine of unconscionability as limited as possible for those who are the beneficiary of the demand guarantee.

과학기술진흥법제의 체계적 고찰

손경한(Sohn, Kyung Han) 충북대학교 법학연구소 2010 과학기술과 법 Vol.1 No.1

In this paper, I theoretically categorized various Korean legislations for promotion of science & technology (“S&T”) and examined legal meanings of each statute thereunder. Legal system for promotion of S&T can be, in the process of research & development (R&D) and utilization of S&T, divided into three categories of (ⅰ) legislation for innovation in S&T, (ⅱ) legislation for protection of S&T, and (ⅲ) legislation for management and exploitation thereof. The legislation for innovation in S&T can be divided into (ⅰ) legislation for innovation infrastructure, (ⅱ) legislation for innovation in basic technology, and (ⅲ) legislation for innovation in applied technology. The legislation for innovation infrastructure means the laws that provide the directions and policies of a state, a research institution, or an enterprise for its innovation in S&T and construct its infrastructure for R&D. According to the stage of application of S&T, legislation for innovation in basic technology means legislation for R&D of pure science, applied science, and basic technology while legislation for innovation in applied technology means legislation for R&D of the technology applied to actual industry and social life. The legislation for protection of S&T is composed of two parts; (ⅰ) intellectual property law, a private law system that enables the government to promote R&D without pecuniary expenditure by granting an exclusive right to S&T, and (ⅱ) all administrative law systems for protection of S&T which include legal system for protection of technological measures. The legislation for management and exploitation of S&T is a legal system that accumulates and manages achievements in S&T and promotes utilization of the achievements such as transfer or commercialization of technology. As to the legal system for promotion of S&T, it is necessary to establish a legal system that aims at innovation in S&T without overlooking the dignity and values of human being, protection of privacy, guarantee of environmental rights, and so forth. In this perspective, the Science & Technology Basic Act (“STBA”) can be highly appreciated in that it has provided a base to significantly enhance the Korea’s level of science & technology, for example, by declaring the fundamental idea of science & technology law, but still it stands on being science and technology promotion for mankind. However, the STBA exposes many problems in the legal system in that it was enacted only in 2001 which is later than enactment of other special statutes for science and technology promotion. For the short term, government and institutions for science and technology must keep in mind that, when they establish and proceed with the National Basic Science and Technology Plan, they must pay attention to realizing the science and technology policies where the fundamental idea of the STBA flows through. In the long term, they must systemize the legislations for promotion of science & technology under the fundamental idea and theory therefor, and further, must set up a legal system to protect both the efficiency of investment in R&D for science and technology and the dignity of human being.

오픈 사이언스를 위한 법제 개선방안

손경한 ( Sohn Kyung-han ),박진아 ( Park Jin-a ) 한남대학교 과학기술법연구원 2022 과학기술법연구 Vol.28 No.3

오픈 사이언스(open science)를 향한 거대한 시대적 조류가 형성되고 있다. 최근 오픈사이언스는 과학방법론으로서 전세계적으로 새로이 부상하고 있으며, 특히 4차 산업혁명과 코로나19 사태로 새로운 융합적 지식과 기술의 신속한 창출을 위해 모든 통로의 과학적 지식을 개방하고 공유하는 것을 추구하면서 그 흐름이 가속화되고 있다. 주요 선진국은 새로운 지식·가치의 창출과 공유·확산을 위해 디지털기반으로 연구성과와 과정을 개방화하고 국내외 민관학이 협력 연구하는 오픈사이언스 정책을 적극 추진하고 있는바, 우리나라의 경우에도 이러한 시대적 흐름에 부응하여 국가 차원의 오픈사이언스 정책을 수립함으로써 공공연구(publicly-funded research)의 공개·공유를 지원하여 그 유용성을 제고하고 가상연구환경을 통한 연구자간 상호협력을 활성화하는데 이바지함과 아울러 디지털 시대에 새로운 발견과 관점과 산업을 추동할 수 있는 계기를 마련하고, 국가 경쟁력과 경제 성장을 촉진할 필요가 있다. 이를 위한 법제적 과제로 오픈사이언스의 기본원칙을 과학기술기본법 등에 반영하는 등 오픈사이언스 정책을 법제화하는 방안을 마련할 필요가 있다고 할 것이다. 오픈사이언스가 “논문과 데이터의 오픈화”에서 데이터통합 플랫폼에서 데이터 공유, 접근과 과학자 협업까지 포함하는 개념으로 변화하는 현 시점에서 오픈사이언스에 대한 체계적인 이해가 절실하므로 본고에서는 오픈사이언스 개념 이해를 위하여 오픈사이언스의 개념과 그 개념의 필요성을 살펴보고, 오픈사이언스에 관한 국제규범의 발전 상황을 검토하고 그로부터 오픈사이언스의 기본 원칙을 도출한 다음 그를 기초로 우리나라 오픈사이언스 법제의 개선방안을 모색해 보고자 한다. A huge trend toward open science is being formed. Recently, open science is emerging worldwide as a methodology of scientific research. In particular, the flow is accelerating as we seek to open up and share scientific knowledge in all channels for the rapid creation of new convergence knowledge and technology due to the 4th industrial revolution and the COVID-19 crisis. Major advanced countries are actively promoting open science policies to open digital-based research results and processes to create, share, and spread new knowledge and values, and conduct collaborative research between domestic and foreign public and private academies. Accordingly, in the case of Korea as well, it is necessary to enhance the usefulness of publicly-funded research by supporting the disclosure and sharing of publicly-funded research results and processes by establishing a national open science policy in response to this trend. In addition, it should contribute to vitalizing mutual cooperation among researchers through the virtual research environment. Through this, it is necessary to provide an opportunity to drive new discoveries, perspectives and industries in the digital age, and to promote national competitiveness and economic growth. For this purpose, it is necessary to prepare a way to legislate open science policies, such as reflecting the basic principles of open science in the Framework Act on Science and Technology. Currently, the concept of open science is changing from “open scientific publications and research data” to a concept that includes data sharing, access, and scientist collaboration on a data integration platform, and an accurate understanding of open science is urgently needed. Therefore, in this paper, the concept of open science and the necessity of the concept will be examined first in order to understand the concept of open science. Second, the development of international norms on open science will be reviewed, and third, the basic principles of open science will be derived from it. Lastly, based on the above review, I would like to explore ways to improve Korea's open science legislation.

지식재산의 준거법에 관한 입법 방안

손경한(Sohn, Kyung-Han) 한국국제사법학회 2021 國際私法硏究 Vol.27 No.1

정보혁명과 그에 이은 4차산업혁명으로 촉발된 사회 환경의 변화는 국제사법과 지식재산법 을 비롯하여 우리 사회의 모든 법규범의 획기적인 변화를 강요하고 있다. 이러한 환경의 변화로 분쟁해결에 있어 법원에서의 재판보다는 ADR을 선호하게 됨으로서 국제사법의 중요 영역인 국제재판관할과 외국판결승인집행의 문제가 날로 줄어들고 있으며 국제재판관할 결정이나 준거법 지정에 있어서도 연결점이 상실되거나 모호해지고 있다. 또는 경쟁법 등 공법의 간섭이 심화됨으로써 국제사법이 불필요해지는 경향이 있다. 이처럼 전통적인 국제사법 이론이 적절하지 않은 상황으로 변하고 있어 국제사법도 위기에 봉착하였다. 지식재산법의 영역에 있어서도 중심이 특허에서 저작권으로 이동한지는 오래 되었고 이제는 지식재산권 보호에서 영업비밀보호와 부정경쟁방지라는 불법행위로 그 초점이 놓이고 있다. 나아가 그 보호대상에 있어서도 창작성을 요하는 지식재산의 범위를 넘어 데이터를 비롯한 무형재산 그 자체를 보호하는 데로 그 중점이 이동하고 있다. 본고에서는 이러한 사회환경의 변화를 지식재산의 관점에서 살펴보고 그에 적용될 새로운 준거법 결정 기준을 모색해 보고자 한다. 이처럼 새로운 준거법 결정 기준을 정립하기 위하여는 아래와 같은 점에 유의하여야 할 것이다. (1) 지식재산 환경의 변화와 (2) 지식재산법제의 글로벌한 변화를 숙지하고, (3) 지식재산에 관한 국제재판관할법제와의 정합성과 (4) 지식재산의 준거법에 관한 국제규범과의 정합성을 고려하면서도 (5) 지식재산의 모든 법률관계의 준거법 지정에 통용될 수 있는 일반 원칙을 제시하고 (6) 지식재산과 관련하여 높아진 대한민국의 국제적 위상을 반영하여 (7) 세계를 선도하는 선진적 입법을 제시하여야 할 것이다. 이러한 관점에서 필자는 지식재산 관련 준거법결정원칙으로 당사자자치의 원칙과 최밀접관련국법원칙을 주창하였다. 다만 당사자자치의 원칙을 관철하는 경우 부당한 결과가 나올 수 있으므로 그에 대한 적절한 한계를 설정하는 작업이 추가 되어야 하고 최밀접관련국 판단에 있어서도 구체적 기준을 제시하여 준거법 지정에 관한 공정성과 예측가능성을 제고하고자 하였다. 준거법 지정에 관한 예측가능성 제고는 기준의 제시로 가능할 수 있을 것이나 준거법의 공정성 확보는 국제사법 만으로는 해결하기 어려운 난제라 할 것이다. The transformation of the social environment triggered by the information revolution and the subsequent Fourth Industrial Revolution are forcing drastic changes in all legal norms in our society, including private international law and intellectual property law. Due to these changes in the environment, ADR is preferred over litigation in dispute resolution, and the major issues in private international law such as international jurisdiction and recognition & enforcement of foreign judgments are gradually decreasing day due to reduction of court cases. Also it became difficult to determine the governing law of a legal issue due to lack of or, at least, unclarity of the connecting factors(Anknuefungspunkt) thereto. Furthermore, as the need of interference of public law such as competition law has increased, rooms for the conflict of laws rule for application of private law tends to become diminishing. We are entering into an age that the fate of private international law is in crisis. In the field of intellectual property law, the focus has shifted from patents to copyrights for a long time, and now the focus is shifting from protection of intellectual property rights to protection from tortious acts such as trade secrets infringement and unfair competition. Furthermore, even in the subject of protection, the focus is shifting to protecting data and other intangible property itself, rather than creative works and achievements. In this paper, we look at these changes in the social environment from the point of view of intellectual property and try to find new standards for determining the law applicable thereto. In order to establish a new standard for determining the governing law of intellectual property issues, it is necessary to pay attention to the following points: (1) changes in the intellectual property environment; (2) global changes in the legal system of intellectual property; (3) compatibility with the international legal system of jurisdiction regarding intellectual property; (4) compatibility with international norms on the governing law of intellectual property; (5) carving general principles applicable to the governing law for various situations of intellectual property; (6) reflecting the upgraded status of Korea at the international intellectual property community; and (7) proposing of a model legislation for the days to come in the globalized world. From this point of view, the author advocated the principle of party autonomy and the principle of the most closely connected country as the principles for determining the law governing intellectual property instead of the traditional principles of lex protectionis or law of the origin. However, since allowance of the full party autonomy may results in unfairness, the setting of appropriate limits to the freedom of choice of law must be secured, and concrete and specific standards for determining the most closely connected country should be presented to enhance fairness and predictability of the governing law to be applied. Although it may be possible to improve the predictability of the governing law by adopting the above mentioned standards, realization of the fairness after application of such determined governing law would be a conundrum that can be hardly solved by the private international law alone.

기술활용으로서의 기술금융의 법적 전략

손경한(Sohn Kyung Han),이홍기(Lee Hong Kee) 충북대학교 법학연구소 2015 과학기술과 법 Vol.6 No.2

A Technology Finance is one of the effective way to utilize technology as financial assets. The purpose of technology utilization is to maintain and realize the value of technology. Traditionally, technologies are utilized for business establishments, technology license or technology transfer, which are the types of utilization that realizea usufruct or an exchangeable value. Technology finance can stimulate both values in simultaneously. Therefore, whom may want to utilize technology should consider technology finance with strategic concerns. With the importance of technology, technology finance also has a peculiar features of legal issues. For this reasons, legal strategy for technology finance as utilization may contemplated. Generally, legal strategy for technology finance should include the aspects of what to finance and how to finance. Most of the technologies are protected by intellectual property rights, so the legal application of intellectual property laws should be included. Commercial laws and many other acts which concerned with capital markets are as well. Meanwhile, specific considerations needs to be deliberated. During technology finance, technology holder should raise the investments, choose the way of securitization and consider the disclosure of financial intervention. In conclusion, the importance of legal strategy for technology finance has been raised, and must reflect the overall factors of technology utilization. This thesis focused on to reveal those factors and to lay out it. By doing so, technology can manifest its values as assets and the whole system of innovation will work well.

방송산업의 현황과 방송저작권의 과제

손경한(Kyung-Han Sohn) 강원대학교 비교법학연구소 2014 江原法學 Vol.42 No.-

방송의 제작과 유통 환경이 급격하게 변화하는 시대에 있어서 방송의 제작 및 유통에 관한 저작권이 문제되는바, 본고에서는 방송물의 다양한 활용을 위한 전제로서 방송물의 저작물성이 다투어지는 경우와 그 저작권귀속이 문제되는 경우 등을 중심으로 살펴보기로 한다. 먼저 방송산업의 현황(Ⅱ), 방송저작권의 개념과 특징(Ⅲ)을 살펴본 후, 방송저작권의 주요 쟁점(Ⅳ)으로서 방송물의 저작물성, 방송저작권의 귀속, 실연자등의 권리와 방송저작권, 저작권에 의하지 아니한 방송물의 보호의 순서로 검토한다. 이러한 검토를 토대로 방송산업의 변화와 방송저작권의 새로운 경향(Ⅴ)을 간략하게 정리하고자 한다. As information technology has been developed rapidly, broadcasting industry continues to experience dramatic and rapid changes. Under these situations, production and distribution environment in broadcast works also have been changing. Especially, broadcast makers are increasingly developing new business models to activate multi-use of broadcast works to be made. In order to meet with the rapidly-changing present broadcasting industry, copyright law regarding broadcasting becomes vital and necessary. This paper purported to provide an overview of major current issues in broadcast copyright in reflection to the rapidly changing broadcasting industry. The newly emerging issues include copyrightability of broadcast works, initial ownership of broadcast works, scope of copyright to be granted to the broadcast works, distribution of broadcast works via various media and new way of protection for broadcast works. In order to deal with these emerging issues, I firstly, addressed current situation of the broadcasting industry in the world(Ⅱ), and dealt with the need to redefine and to feature the concept of broadcast copyright as well as broadcasting itself(Ⅲ). Secondly, I reviewed main issues in the law of broadcast copyright in the 21 century such as copyrightability of broadcast works, ownership of broadcast copyright, right of the performers and record producers for broadcast works, and broadcast copyright and other protection methods for broadcast works(Ⅳ). Finally, based on the review stated above, I addressed briefly the areas of the laws on broadcast copyright which need to be improved(Ⅴ).

국제보건의료분쟁의 해결

손경한(Sohn Kyung Han) 충북대학교 법학연구소 2016 과학기술과 법 Vol.7 No.1

Since last century, international trade of pharmaceuticals and medical instruments have increased and healthcare insurance business expanded over the national border. Recently, international medical tourism and cross-border operation of medical institutions have become active. Accordingly, disputes in international healthcare area have also increased. This article focuses on international disputes between patients and medical service or products providers. The significant characteristics of the healthcare industry are the formation of healthcare community for its constituents. This is because healthcare is closely related to, and a part of social security system of a community. Such healthcare community can be formed nationally or regionally. The regional healthcare community may cover a part of a country or several countries. The healthcare community defines and regulates the relationship among the constituents, i.e., patients, medical service providers, drugs and medical products suppliers and health insurers. Even a private medical treatment contract between a patient and a medical institution is strongly influenced, if not governed, by the regime of the healthcare community. We can find many international conventions and treaties which mention or rule international healthcare matters. For example, the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, EU Charter of Fundamental Rights 2000, Convention on the Elimination of all Forms of Discrimination Against Women, 1979, ILO Occupational Safety and Health Convention 1981, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990, Convention on the Rights of Child 1989, Convention on the Rights of Persons with Disabilities 2006, The international trade laws also deal with health protection such as the WTO Treaty itself and the Agreement on the Application of Sanitary and Phytosanitary Measures(SPS Agreement). As directed by Article 57 of the Charter of the United Nations, the International Health Organization Constitution was established in 1946 to form the WHO, which is in charge of the international public healthcare matters. The WHO has promulgated the International Health Regulations of which the most current version was amended in 2005. In addition to these international hard laws, there are numerous international soft laws in medical treatment. Some of the well known international rules are Nuremberg Code 1947, WMA International Code of Medical Ethics 1949(currently 2006), Declaration of Helsinki-Ethical Principles for Medical Research Involving Human Subjects 1964 (currently 1974), Declaration of Alma-Ata at International Conference on Primary Health Care 1978, and WMA Declaration of Lisbon on the Rights of the Patient 1981 (currently 2015). Some of those rules became customary international laws. If not, they may be treated as a part of the “generally recognized international rules” as provided in Article 6 of the Korean Constitution or as those of the “general principles of law recognized by civilized nations”under the international law. Due to characteristics of healthcare service, the traditional rules of private international law do not apply to healthcare disputes. Rather, the law of the relevant healthcare community apples in most cases. The only exception is the case where the patient voluntarily left his home to get the healthcare service in a foreign country. In such case the law of patient’s healthcare community is excluded and the law of the healthcare institution will apply unless the parties agreed otherwise as to the governing law of the healthcare service.

國際知的財産訴訟原則의 定立

손경한(Sohn, Kyung Han) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.3S

This paper aims to review the efforts to establish the principles on transactional intellectual property litigation by the American Law Institute("ALI"), the Max Planck Institute("MPI") and other organizations form Korean perspectives. In May 2007 the ALI has finalized the remarkable works of drafting the principles for the issues of jurisdiction, choice of law and judgment recognition and enforcement in transnational intellectual property disputes. However, it is too big and complicated for the continental businessmen and lawyers to understand and digest the logic and contents of the ALI principles. In drafting the Korean version of the principles, the Korean group has paid attention to the following points: (1) To draft the principles which are relatively simple and therefore, can be easily accessible and understandable. (2) To draft the principles which will meet the needs to solve transnational intellectual property disputes in the global and network economy in the 21 Century: (3) To draft the principles which are competible with the continental legal system that is adopted by the most European and East Asian countries. (4) To provide legal rules for resolution of transnational intellectual property dispute by alternative dispute resolution(ADR), i.e., by arbitration which is preferred by the businessmen who are involved in international or electronic commerce. In drafting the rules on international jurisdiction, it is recognized that the traditional approach based on territoriality is hard to maintain. In lieu of territoriality, the agreement and contacts of the parties to the forum state are determinative factors for the issue of jurisdiction. The court agreed by the parties shall have jurisdiction not only on the disputes related to contract or infringement of intellectual property but also on the disputes regarding existence or validity of intellectual property although, in the latter case, the judgment rendered by the court agreed by the parties shall be binding and effective only between the parties unless the judgment of the court on the dispute would otherwise have effect erga omnes. Consolidation of multiple claims or claims against multiple defendants may be allowed in the limited circumstances where those claims are so closely connected that they should be adjudicated together for the efficient plus just resolution of the disputes. As to the conflict of laws rules, it can be divided into there categories, i.e., (ⅰ) the intellectual property which must be registered to be valid(registered IP), (ⅱ) the intellectual property which need not be registered for validity and protection(non-registered IP) and (ⅲ) the initial ownership question for the non-registered IP. While the disputes regarding registered IP shall be governed by the law of the country where the IP has been registered, the dispute regarding non-registered IP can be governed by the law of the country for which the protection is sought. As to the issue of the initial ownership of the non-registered IP, the law of the country of origin will govern the issue. Any adjudication rendered by the competent court shall be respected by other country's court and, therefore, recognized and enforced without review of substantive issues. Enforcement of judgment having punitive nature may be rejected in consideration of the nature of the private international law. As to the IP dispute resolution by ADR such as arbitration, the above discussions regarding jurisdiction and enforcement of judgment would be applicable. The spirit of party autonomy should be more respected in ADR than in litigation. The author hopes that the principles drafted by the Korean group with more progressive perspective than the principles of MPI and ALI would have certain positive impacts on the rule makers for fair, speedy and suitable resolution of transnational intellectual property disputes.

한국에서의 외국중재판정 승인의 실제

손경한(Sohn, Kyung Han) 한국국제사법학회 2014 國際私法硏究 Vol.20 No.2

오늘날 중재제도는 국제적 분쟁해결의 총아로 등장하여 급속한 속도로 국제적 통일을 이루어 가고 있을 뿐 아니라 국가 경쟁력의 한 지표가 되어 각국은 경쟁적으로 자국의 중재제도를 개선하여 국제중재사건을 자국에 유치하려는 전략을 쓰고 있다. 이점은 외국중재판정의 승인집행에 있어서도 마찬가지이다. 외국중재판정의 승인집행거부사유는 제한되는바 뉴욕협약의 적용을 받는 외국판정에 대한 승인 거부사유를 중심으로 먼저 피고가 주장하여야 하는 승인집행거부사유인 당사자의 행위무능력(Incapacity) 또는 중재합의의 무효(Invalidity), 부적절한 통지 (Inadequacy in notice) 등 방어권 침해, 중재인의 무권한 (Non-competence of arbitrators), 중재판정부 구성상의 하자(Improper constitution of tribunal), 구속력 없는 중재판정(Non-binding)에 관한 사례를 살펴보고 나아가 외국중재판정에 대한 직권 승인집행거부 사유인 중재적격성 부존재(non-arbitrability)와 공서위반 (violation of public policy)관한 사례를 살펴보았다. 그동안 우리 법원이 중재제도에 호의적인 태도를 가지고 외국중재판정을 한국에서 용이하게 집행할 수 있도록 하는 등 중재제도의 정착이 힘쓴 것은 높게 평가받아야 할 것이다. 또는 중재법제도 1999년 개정 이래 대한상사중재원이 국제중재규칙을 따로 제정하고 다른 부수 규정도 정비하여 국제적인 신인도를 제고하여 왔고 법무부도 중재법개정위원회를 하여 중재법의 경쟁력을 강화하는데 노력하여 왔다. 이와 관련한 외국중재판정 승인제도의 개선점으로는 외국중재판정의 승인에 있어 법원 관여 제한의 원칙 선언하고, 광범한 중재적격성의 인정하며, 절차적 공서 위반 사유를 구체적으로 입법하고 나아가 집행판결제도의 폐지를 폐지하는 한편 뉴욕협약의 적용을 받지 않는 중재판정의 승인요건을 개선할 필요가 있음을 지적하였다. 또한 이러한 국내법의 정비와 아울러 뉴욕협약의 보완이나 중재에 관한 양자조약의 체결 등을 통하여 중재에 관한 국제적 협력을 강화하는 한편 그 일환으로 외국중재판정의 승인요건을 완화하여 나가야 함을 적시하였다. Korea is a pro-arbitration country. Korea has enacted its Arbitration Act(“KAA”) in 1966 and joined the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“the New York Convention”) in 1973. When Korea joined the New York Convention, it has made both the reciprocity and commerciality reservations. Due to Korea’s rapid economic growth and the explosive increase in international trade, Korean court has valued the arbitration as an effective mechanism for solving disputes arising in the international trade. In order to meet the needs of international business community, the KAA was amended in 1999, adopting the UNCITRAL Model Law on International Commercial Arbitration. In recognition and enforcement of foreign arbitral awards, Article 39 of the KAA provides limited grounds for rejection therof. The seven(7) grounds for refusal are (i) the arbitration agreement is not valid due to limits to a party’s capacity, (ii) the arbitration agreement is not valid for a reason other than limits to a party’s capacity under the law to which the parties have agreed to subject it (or, failing any indication thereof, under the law of Korea), (iii) the party making the application was unable to present its case in the arbitral proceedings, (iv) the arbitral award contains decisions on matters beyond the scope of the arbitration agreement or the claims in the arbitral proceedings, (v) the composition of the arbitral tribunal or the arbitral proceedings were not in accordance with the agreement of the parties or the Korean law, (vi) the dispute was not one that is capable of settlement by arbitration under the Korean law, or (vii) the award is in violation of public policy of Korea. Practically, the Korean courts have rather been supportive of arbitral awards and have generally refused to query the awards issued by both local and foreign arbitral tribunals. If an award has been set aside by a foreign court, the Korean court may refuse enforcement. However, if the foreign court has unreasonably set aside the award, there is a possibility that the award will be enforced in Korea although there is no case in Korea on the point yet. Korean arbitration law and system need to be further improved and Korean government and its arbitration body is working for that purpose.