국제거래상 외국 민⋅상사재판의 승인⋅집행에 관한 소고- 한국, 미국, 일본 및 중국의 경우 -

진홍기,HongKi Jin 한국비교사법학회 2014 비교사법 Vol.21 No.4

한국은 미국, 중국, 일본과 꾸준히 상호무역을 확대해 왔다. ‘국제거래’에서 ‘국제계약’과 관련된 분쟁이 발생해서 받은 재판의 승인⋅집행을 외국에서 구하는 가장 큰 이유는, 당사자(채권자)가 거래 상대방(채무자)의 재산이 채무자 거주국(외국)에 있다는 것을 발견하고, 이를 집행하여 채권을 회수하고자 하는데 있다. 한 나라의 법원이 외국재판을 승인⋅집행하는 요건은 무엇인가? 외국재판의 승인⋅집행의 근거에 대한 논의는 영미법 학자⋅법관에 의하여 출발하여 지금까지 여러 견해가 나와 있다. 그러나 무엇보다도 중요한 것은 여러 나라가 다른 나라의 재판이 그 나라 법령에서 정하는 ‘요건’을 충족시킨다면 이를 ‘상호’ ‘승인’할 수 있다는 주장이 설득력이 있다고 본다. 최근 우리나라의 민사소송·집행법의 개정을 이러한 맥락에서 바라볼 수도 있다. 오늘날 많은 나라는 각 국내법에서 외국재판의 승인⋅집행에 대해 규율하고 있다. 그러나 그 요건이나 승인(효과)은 나라마다 각 다르다. 크게 재판관할, 송달의 적법성, 공서양속 그리고 상호보증을 들 수 있다. 그런데 미국, 일본, 중국은 외국재판을 자국에서 승인⋅집행하는 요건으로서 ‘상호주의’를 채택하고 있는 것으로 보인다. 그러나 상호주의는 부정적인 측면도 있다. 그러므로 상호주의를 극복하려면 양자·다자간조약의 체결 이전에 적어도 각국의 상이한 사법제도의 역사와 전통을 넘어서 서로 중요한 점에서 동일하도록 법제도를 완비할 필요가 있다. 그 밖에 문제가 되는 것은 피고의 방어권을 보장한다는 차원에서의 ‘송달의 적법성’과 한 나라의 사법제도를 최소한으로 지킨다는 차원에서의 이른바 ‘공서양속’을 생각할 수 있는데, ‘송달의 적법성’ 문제는 매우 법⋅기술적이고 실무적인 것인데 반해, ‘공서양속’은 한 나라의 사법제도의 모습을 보여주는 거울이라고 할 수 있다. ‘공서양속’은 ‘예의와 정의’ 라는 근본적 가치, 사법권이 최후에 지켜내야 하는 ‘법적질서’ 이다. 그리고 송달은 대체로 판결국이 헤이그송달협약 체약국인 경우에는, 송달이 위 협약에 따라 이루어져야 한다고 보고 있다. 상호보증⋅공서양속이 추상적인 요건이라면 송달은 재판진행을 위한 법⋅기술적이고도 실무적인 구체적인 요건이라고 할 수 있다. ‘상호주의’가 ‘국제거래’에서 당사자가 외국재판을 집행하는 데 부딪치는 첫 번째 난관이라고 할 수 있다. 그리고 ‘공서양속’은 보이지 않는 제한요소이다. 이러한 맥락에서 우리나라 는 재판의 승인⋅집행과 관련하여 미국, 일본, 중국과 적극적으로 협력하여 사법공조협약은 물론이고 양자⋅다자간 국제조약을 체결하도록 노력하고, 그러한 노력의 일환으로서 먼저 예양정책을 확대해 나갈 필요성도 있다. The trade among Korea, Japan, and China has been increasing recently and the Korea-US FTA has been in act. Where trade exists, also the arise of dispute is easily expected. When a party in a trade is aggrieved in terms of his rights, he surely seeks judgment or award in his country. In this case, if a judgment or arbitral award is not recognized in another country where a party which breaches a contract, then it will act as an obstruction to the flow of trade, because a party cannot be protected in terms of investment or trade. There are several regulations with regard to the recognition and the enforcement of foreign judgment in the Korean enforcement judgment act. This essay will examine the basic requirements and conditions enshrined in the act. With regard to recognition and enforcement of foreign awards, there exists the New York convention, into which a large number of countries have entered. However, there are no treaties which deal with the problem of the recognition and enforcement of foreign judgment. This means that the recognition and enforcement shall be determined by each country’s judicial policy. Under the Korean Law, if a foreign party seeks a recognition and enforcement from the Korean court, there should be several conditions such as the defendant’s right to defend himself, and the foreign judgment should accord with the Korean public policy. The other issue is a reciprocal policy, which means that if a foreign country recognizes and enforces the other country’s judgment, the other country should also do the same way. In treating such reciprocal policy, Anglo-American countries and civil law countries have different views. The former views the recognition and the enforcement as a confirmation of private rights, whereas the latter views them as the function of sovereignty. As such, there are many issues in relation to the recognition and enforcement of foreign judgment. Therefore, this essay explores some philosophies and precedents ruled by Korean and Anglo-American court as well as the civil law country’s court and suggests a fruitful solution to invite reciprocal actions for the recognition and enforcement of foreign judgment.

프로젝트 파이넨스(PF)의 현행법상 몇 가지 문제점

진홍기 한국경영법률학회 2009 經營法律 Vol.20 No.1

Modern project finance('PF') is said to have been invented in U.S. when independent oil companies, particularly in Texas, tried to find and extract oil, banks had provided funds relying only for cash flow generated by the resource betting that the oil was actually present and that it could be sold at a price that lived up to initial expectation. In the PF, the sponsors ordinarily establish legally distinct economic entities(project company: PC), to develop, manage, and finance the project. A PC borrows money on a limited or non-recourse basis from the bank on the condition that the banks rely on the project’s cash flows rather than on the assets or general credit of the sponsors for the loan repayment(this is called 'the PF in the true sense'). Despite the nature of a PF in terms of the non-recourse(or limited recourse) basis loan, the domestic PF in field of real estate development does highly rely on the credit and capacity of construction companies, placing on them all the risks arising out of the project. Therefore, the domestic PF does not fall within the PF in the true sense. The main reason that the domestic PFs are far behind the international level can be due to the insufficient and the premature domestic financial systems, along with the institutional inertia. For example, project companies and the banks also have to meet with a lot of barriers to the relevant law, e.g. company law, banking law and competition law. The lack of well trained and sophisticated developers and an underdeveloped capital market is also hurting domestic PFs, too. In order to rehabilitate a domestic PF and level up to an international criteria, a stakeholder must go back to the PF in the true sense and fix the financial systems, which consists of relevant law reforms and the development of the capital market for the PF.

意思表示의 瑕疵(1)- 法律行爲 內容의 重要部分에 대한 錯誤 -

진홍기 한국민사법학회 2012 民事法學 Vol.58 No.-

Claims under a mistake in Contract law have raised a question and provided a source of persistent difficulties. It can be said that these difficulties have been partly due to the complex nature of the underlying issues found in Contract law. Intuitively, a serious tension exists between the concept that a mistake may be a ground for relief in contractual transactions and such basic ideas of contract law as risk-shifting and the security of transactions. Under the Korean Civil Code, however, a declaration of intention shall be voidable provided that a mistake be made with respect to any essential elements of the juristic act. This feature that the Korean Civil Code posit is very similar to that of the Japanese Civil Code. There are conceptual inconsistencies between the two legal systems about the identification of the “essential elements” and what their legal categories consist of. On the other hand, in France, an error warrants relief if it is in substance (substance) of the contract. Likewise, in Italy, if it is “essential”(essenziale), relief may be guaranteed. In Germany, although the connotation might be slightly different from others, if it is in a characteristic “regarded in commercial dealings as essential (die im Verkehr als wesentlich angesehen werden)”, a relief shall be warranted. This article has explored the concept of and requirements for the mistake relief by comparing different legal tools for the examination of a mistake adpted in Civil law regimes and Anglo-American systems, along with a scrutiny on the Korean and Japanese authorities. Moreover, it has tried to define requirements for a mistake to be warranted. In order to do so it has employed historical studies tracing back to Roman law in line with systematic exploration on the mistake relief regimes in the Civil law as well as the Anglo-Americans.

Polyester / Cotton 혼합직물 방염처리를 위한 poly -2,3- dibromopropyl acrylate ( PDBPA ) 의 응용

진홍기 한국고분자학회 1977 폴리머 Vol.1 No.5

국제물품매매계약에 관한 국제연합협약상 계약해소에 관한 일고찰

진홍기 한국경영법률학회 2016 經營法律 Vol.26 No.2

The United Nations Convention on Contracts for the International Sale of Goods(‘CISG’), which more than 80 countries entered as Member States, became into enforcement in Korea on March 1, 2005. This means that the CISG is the international legal regime regulating Korean enterprises who trade with foreign companies. There are several prominent provisions in the CISG, setting up basic norms for the international trade such as ‘remedy’, ‘monetary damages’, ‘specific performance’, and ‘contract avoidance’. The provisions relating to the ‘contract avoidance’ are the most important ones in relation to mutual conflicts between the contracting parties. The general provision regulating the ‘contract avoidance’ is the CISG 25. However among its wording, ‘fundamental breach’ is not only controversial, inviting thorough exploration, but also arouses further investigation for its application to the specific international sale of goods trade. However, developed countries such as Germany and Japan have recently revised their Contract Law according to the CISG regimes in terms of contract cancellation (avoidance). Tracing back to the birth of the ‘contract avoidance’ regimes in the CISG, the relevant wording had been introduced and employed by the case laws in the Anglo-American law. Furthermore, the CISG provides independently several requirements(conditions) to apply the CISG 25 and declare contract avoidance; ‘substantial detriment test’ and ‘the foreseeability component’. In addition, the CISG provides procedural regulations relating to the serving notice of avoidance and allows sellers to fix the performance as the preconditions for the buyers to declare ‘the contract avoided’, even though a aggrieving party(seller) committed the fundamental breach of the contract. In this context, this essay examines and explores various regimes with regard to the contract cancellation(avoidance) and tries to find out the solution for the exact meaning of the wording in the CISG. And it maneuvered the Civil and the Common law regimes in terms of contract avoidance. Finally, it suggests the revision of the Korean Civil Code relating to the contract cancellation(avoidance) according to the relevant CISG provisions. 우리나라가 가입하여 2005년 3월 1일부터 발효된 CISG는 국제물품매매에 있어서 중요한 준거법이 되었다. CISG에서 중요한 규정들은 금전 손해배상, 특정이행 그리고 계약무효와 같이 피해자를 구제하기 위해 두어진 것들이다. 특히, CISG 제 49조와 제 64조에 의하면, 계약 당사자는 일정한 경우에 이미 체결된 ‘계약이 무효라고 선언할 수 있다’고 규정하고 있는데, 이러한 계약해소의 효과는 대륙법계의 ‘소급효’가 부여된 엄격한 의미에서의 원상회복은 아닌 것으로 보인다. 왜냐하면 CISG는 영미법계의 계약해소 법리의 영향도 받았기 때문이다. 한편, CISG 제 25조에서 말하는 ‘계약을 무효로 하는’ 효과가 발생하는 사건으로 들고 있는 계약의 ‘본질적(중대한) 위반’이라는 사고의 틀은 1950년대 영국계약법에서 비롯되었지만, 그럼에도 불구하고 CISG는 여기에 경도되지 않고 CISG만의 독자적인 구조를 가지고 있다. 즉, CISG는 ‘손해’를 입은 당사자의 ‘계약상 및 예상이익’이라는 개념에 바탕을 두고, 그가 입은 ‘손해’라는 관점에서 ‘계약의 본질적 위반’을 정의하고 있다. 아울러 CISG는, 대륙법계인 독일의 유예기간주의 법리에 영향을 받아 계약을 위반한 당사자에게 계약을 이행할 수 있도록 합리적인 기간을 추가로 주어야만 비로소 계약을 무효로 할 수 있도록 하는 부가기간설정 제도도 두고 있다. 위와 같은 CISG의 ‘계약의 본질적 위반’을 중심으로 한 계약해소법리(구조)는 국제상사계약원칙, 유럽계약법원칙은 물론이고 독일민법과 일본민법의 개정에도 큰 영향을 미쳤다. 그렇다면 우리도 CISG의 계약해소 구조(법리)를 우리 법제에 맞게 받아들여, 대륙법적인 채무불이행의 유형에 집착하지 않고 또, ‘채권·채무’의 차원으로부터 한 단계 높여 영미법적인 ‘계약’이라는 큰 틀에서 접근하여 계약법을 논의하는 것이 바람직하다.

株主들간 契約의 內容과 效力에 관한 硏究 - 英·美를 중심으로 우리나라와 比較法的 觀點에서 -

진홍기 한국상사법학회 2008 商事法硏究 Vol.26 No.4

Recently Korean Companies have expanded their size and capacity by mergers and acquisitions as well as establishing the joint venture companies internally and externally. Henceforth, for a buyer to acquire the target company, a buyout fund should be made available. In regards to this issue, currently through the application of Act on Business of Operating Indirect Investment and Assets to the legal market, this sort of buyout fund solemnly created for assisting acquisition of a company, which belongs to an area of Private Equity Fund system, can be established. This fund contributes towards the acquisition as a strategic investor. They invariably enter into shareholders’ agreement in order for them to allocate powers for their interests and for the minority party to take assurance that their rights be protected as investors. Shareholders’ agreement functions as a tool which modifies and varies the article of association or the bylaw, because the company law and the article of association may not cover all the terms and the conditions which the shareholders wish to provide and they need to make arrangement inter se to protect their close enterprise-relationship from the intervention of outsiders. Even though voting trusts, irrevocable proxies, and management agreement function as the vehicle to amend the articles of associations but are distinctly different from the shareholders’ agreement. Shareholders’ agreement takes a variety of forms and contents, such as rights and duties of participants, transfer of shares, the composition of the board, increase of the capital, the exercise of corporate power to borrow, and the right of a shareholder to be bought, which may differ according to the shareholders’ objective of controlling and cooperation between them. In this thesis, in light of a comparative study on Anglo-American law with Korean Law in regards to the forms and contents of the shareholders’ agreement, I managed to investigate the concept and the validity of the specific provision in the shareholders’ agreement, in other words, the various terms and conditions restricting on the capacity of the boards of directors and obliging not only the company to act in terms of capital, management, but also the shareholders’ right to vote for directors. The validity of the shareholders’ agreement between the shareholders and the company who is not a party to the agreement may be argued that it has no effect on the company due to privity of knowledge. However, the shareholders’ agreement not only binds them but also invites the contentious argument about the validity of specific provision. In general, shareholders’ agreements are not sustained by the courts when the contracts were inspired by fraud that a public policy requires that it be given no effect. When the agreements are concerned about the legal capacity of directors, because of a conflict with the principle that the corporate directors are obligated with fiduciary duties toward the corporation, the courts would be content to declare its invalidity. In addition, on the basis that the holders of the majority of the shares of stock in a corporation may control its management and any agreement purporting to. Furthermore, the agreements entered into with a view for modification or fettering the article of association in relation to transfer of shares, fiduciary duties of directors, or to create a sterilized boards of directors, are struck down by the courts. Commentator opines that in the company law there are the facilitative and the mandatory provisions, such as public offerings of securities. The dual character of the company law is undoubtedly highly debatable over the proper construction and application of the shareholders’ agreement toward a recommendable and acceptable resolution. The regulatory rules in the company law are the public policy such as investor protection, and reduction of uncertainty. Furthermore, it is needed for the c... Recently Korean Companies have expanded their size and capacity by mergers and acquisitions as well as establishing the joint venture companies internally and externally. Henceforth, for a buyer to acquire the target company, a buyout fund should be made available. In regards to this issue, currently through the application of Act on Business of Operating Indirect Investment and Assets to the legal market, this sort of buyout fund solemnly created for assisting acquisition of a company, which belongs to an area of Private Equity Fund system, can be established. This fund contributes towards the acquisition as a strategic investor. They invariably enter into shareholders’ agreement in order for them to allocate powers for their interests and for the minority party to take assurance that their rights be protected as investors. Shareholders’ agreement functions as a tool which modifies and varies the article of association or the bylaw, because the company law and the article of association may not cover all the terms and the conditions which the shareholders wish to provide and they need to make arrangement inter se to protect their close enterprise-relationship from the intervention of outsiders. Even though voting trusts, irrevocable proxies, and management agreement function as the vehicle to amend the articles of associations but are distinctly different from the shareholders’ agreement. Shareholders’ agreement takes a variety of forms and contents, such as rights and duties of participants, transfer of shares, the composition of the board, increase of the capital, the exercise of corporate power to borrow, and the right of a shareholder to be bought, which may differ according to the shareholders’ objective of controlling and cooperation between them. In this thesis, in light of a comparative study on Anglo-American law with Korean Law in regards to the forms and contents of the shareholders’ agreement, I managed to investigate the concept and the validity of the specific provision in the shareholders’ agreement, in other words, the various terms and conditions restricting on the capacity of the boards of directors and obliging not only the company to act in terms of capital, management, but also the shareholders’ right to vote for directors. The validity of the shareholders’ agreement between the shareholders and the company who is not a party to the agreement may be argued that it has no effect on the company due to privity of knowledge. However, the shareholders’ agreement not only binds them but also invites the contentious argument about the validity of specific provision. In general, shareholders’ agreements are not sustained by the courts when the contracts were inspired by fraud that a public policy requires that it be given no effect. When the agreements are concerned about the legal capacity of directors, because of a conflict with the principle that the corporate directors are obligated with fiduciary duties toward the corporation, the courts would be content to declare its invalidity. In addition, on the basis that the holders of the majority of the shares of stock in a corporation may control its management and any agreement purporting to. Furthermore, the agreements entered into with a view for modification or fettering the article of association in relation to transfer of shares, fiduciary duties of directors, or to create a sterilized boards of directors, are struck down by the courts. Commentator opines that in the company law there are the facilitative and the mandatory provisions, such as public offerings of securities. The dual character of the company law is undoubtedly highly debatable over the proper construction and application of the shareholders’ agreement toward a recommendable and acceptable resolution. The regulatory rules in the company law are the public policy such as investor protection, and reduction of uncertainty. Furthermore, it is needed for the court to...

영국법상 보험계약 체결 후 최대선의와 우리 법에 대한 시사점

진홍기 한국무역금융보험학회(구 한국무역보험학회) 2016 무역보험연구 Vol.17 No.3

보험계약은 ‘선의’에 기초한 계약이라고 한다. 영국에서 Carter사건 이후 최대선의원칙은 오랫동안 “보험청약자”에게 “계약체결 전 고지의무”라는 측면에서 논의되었다. 그런데 보험계약 체결 후 보험계약자가 사기적 수법을 사용하여 보험금청구를 한 경우에도 이 법리가 적용될 수 있는가? 이것은 “보험계약체결 후 최대선의 의무”의 적용과 그 범위와 관련되어 있다. 먼저 M.I.A. 17조의 해석과 관련하여 ‘무효화 된다’는 것을 ‘소급적 무효’를 의미한다고 보았다. 대표적인 영국 대법원의 판결인 the Star Sea에서 제기된 여러 문제 중에서 중요한 것은 최대선의의 의무는 보험계약이 체결된 이후에도 적용되는가, 사기로 보험금을 청구한 경우 보험자가 M.I.A. 17조에 따라 보험계약을 소급해서 무효로 할 수 있는지 여부였다. 그러므로 이 글에서는 이러한 질문과 관련하여 영국 고등법원과 대법원이 내린 중요한 판례들과 M.I.A. 해석을 중심으로 해서 the Star Sea 사건 판결 전·후 다른 판례들과 비교·평가하면서 법리를 자세하게 살펴보았다. 마지막으로 영국에서 ‘법개정위원회’의 권고와 함께 우리나라의 민·상법과 판례, 그리고 보험법 개정에 미치는 영향에 대해서도 심도 있게 다루었다. It has been said that the nature of an insurance contract is that of the “utmost good faith”. Under the English common law, the principle of “utmost good faith” has been discussed as a matter of duty before the formation of insurance contract. And with respect to the interpretation of s. 17 of the M.I.A. 1906, common law has generally upheld that the insurance contract should be avoided if the insured breached the duty of “utmost good faith”, and it shall result in “retrospective avoidance ab initio” The Star Sea case raised the several questions with regard to the post-contract “utmost good faith”, in particular, when an insured claims fraudulently. As such, this essay explores several English cases which had grappled with those questions the Star Sea case had raised. Futhermore, the proposal for reform that the English ‘The Law Commission’ issued has been scrutinized, and also the relevant Korean Supreme Court case been introduced. Finally, a possibility of the reception of the “utmost good faith” principle into Koeran Commercial Law has been discussed in contrasting with ‘the principle of good faith’ in civil code as the general articles.

債權讓渡에 대한 異議를 保留하지 않은 承諾과 擔保權의 復活

진홍기 한국민사법학회 2010 民事法學 Vol.51 No.-

Under the Korean Civil Code, the assignment of a nominative claim cannot be set up against the obligor or any other third party, unless the assignor has given notice thereof to obligor or the obligor has consented thereto. On the other hand, it can be said that when a nominative claim is assigned to a third party, a mortgage attached to it also follows therewith. There have been lots of studies and also arguments on the legal effect in respect of the Article 451 Paragraph 1, concerning the obligor's ‘consent to the assignee without reservation'. It has been admitted by Korean courts that when an obligor gives consent to an assignee without reservation he cannot set up his refutation that he had against the assignor, also against the assignee. This estoppel prohibiting an obligor from setting up his refutation has been provided for the purpose of promoting transaction on a nominative claim and of affording protection to an assignee. Therefore, it is largely accepted that the consent without reservation made by an obligor give rise to the public trust put on by an assignee. This article explored and examined various problems that may arise when the obligor makes ‘consent to assignee without reservation', by way of balancing the interest of a mortgagor, a guarantor, a third party who takes the title of the real property put on a mortgage. This article also has attempted to resolve those problems by scrutinizing the judgements rendered by Korean and Japanese Supreme Court and criticised various arguments made by a group of scholars in order to bring out fruitful discussions.

국제거래에서의 FOB계약 조건의 본질과 해석·적용에 대한 소고

진홍기 한국경영법률학회 2013 經營法律 Vol.23 No.4

In the sphere of the International trade law, the most striking event in the recent years was ratification of the United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention), as a uniform international sales law, as of 6 March 2013, by 79 countries including Republic of Korea, United States. China, Japan, which account for a significant proportion of world trade. FOB (Free on Board, or Freight On Board) is an acronym pertaining to the shipping of goods, which specifies which party(buyer or seller) pays for which shipment and loading costs, and/or where responsibility for the goods is transferred in the International Sale of Goods. A number of attempts has been made by the English courts to define this word as a contractual term of trade since the late 19th century, and thereafter this word came to mean a ‘contractual term’ on the part of seller’s obligations; the responsibility of putting goods “free on board”. In the past, the risk and title of goods transferred to a buyer was when goods were passing ‘ship’s rail’ under the classic form of FOB. However, this has been replaced by ‘vessel on board’ according to ‘the International Rules for the Interpretation of Trade Terms(“Incoterms”) 2010’ published by ICC, which came into force on 1 January 2011 in order to reflect the modernized transport mechanism. The purpose of Incoterms, undoubtedly, is to avoid or reduce the uncertainties of different interpretations of trade terms in different countries by providing a set of rules for the uniform interpretation of the most commonly used trade terms, such as FOB. Yet, there still exists a criticism that Incoterms 2010 may not be appropriate where goods are handed over the carrier before they are on board the vessel, for example, if the goods are being transported in containers. Considering such legal and practical backgrounds, this essay firstly attempts to set out the basic elements of FOB, as a ‘contractual term’, by examining them in precedents of the English courts. Secondly, usages of the term with regard to the delivery and title-transfer of goods will be discussed with a particular focus on the similarities and differences between CISG, Intercoms2010, and the English precedents. Lastly, I will provide case studies on the rulings made by the Korean courts relating to FOB contracts in comparison with the Western standards and try to evaluate the uncertainties of the rulings.

논술형 사례형-민사법

진홍기 고시계사 2011 考試界 Vol.56 No.11