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우리 법상 배액배상의 도입이 징벌적 손해배상을 명한 외국재판의 승인·집행에 미치는 영향 - 대법원 2022. 3. 11. 선고 2018다231550 판결의 평석을 중심으로 -
박재경(PARK Jaekyung) 법무부 국제법무정책과 2023 통상법률 Vol.- No.161
Hitherto Korean case law has consistently rejected the recognition and execution of foreign country judgments awarding punitive damages under the so-called “public order requirement” of Article 217 (1) 3 of the Civil Procedure Act. Punitive damages, based mainly on the ideology of “punishment”, was unacceptable from the standpoint of Korean civil liability law, which adheres to compensatory damages. However, Korean law has gradually accepted the notion of punitive damages in more than 20 legal areas since 2011, in the form of treble or quintuple damages. This meant that Korean courts can no more hastily jump into the conclusion that if the compensation awarded by the foreign country court is beyond the scope of compesatory damages, it violates the public order of Korea. Supreme Court Decision 2018Da231550 Decided March 11, 2022 (hereinafter referred to as “the Decision”) is the leading case in which Korean Supreme Court officially declared its changed stance on recognition and enforcement of foreign country judgments awarding punitive damages. In the midst of introduction of statutory multiple damages, the change in the Courts view is not only inevitable, but must. However, it is doubtful whether the Courts changed view can be applied in the matter of the Decision. Strictly speaking, what Korean law has adopted is statutory multiple damages, not punitive damages discussed in common law countries. In Korea, the main motives of multiple damages are at promoting compensation and encouraging law enforcement, rather than punishing defendants. Also, each multiple damages law has different functions and the upper limit of compensation. That is to say, Korean civil liability law is still governed by the principle of compensatory damages, and exceptions are only granted in limited areas. Thus, the foreign country judgments awarding compensation beyond the scope of compensatory damages do not violate the Korean public policy, only if multiple damages is recognized in the corresponding area in Korea. Some might say that the “area” means individual “provision”, while others might think of “act” or “legal field”. However, since there is no objective standard on how far can be codified in the same “act” or how far can be categorized as in the same “legal field”, the scope of “area” will gradually expand, ultimately leading to the radical conclusion that every foreign country judgment ordering punitive damages is within the scope of Korean public order. For the clarity of judgment, the predictability of parties, principle of reciprocity, and the continuity with conventional case law, it is necessary to determine the scope of “area” based on “provision”. Nevertheless, the Decision judged the “area” based on “act” or “legal field” using the expression “at least”, suggesting the possibility of expanding the scope of “area” in the future. Considering that the purpose of treble damages under the Hawaii Revised Statutes is at suppressing violation through punishment unlike Korean law, and that legislators deliberately excluded “unfair trade practices” which corresponds to “unfair methods of competition” in Hawaiian law from the subject of treble damages in Korean Monopoly Regulation and Fair Trade Act, the Decision is immoderately “bold”. Meanwhile, although not an issue in the Decision, it is necessary to think about whether and how to limit the recognition of the so-called “excessive compensatory damages”. In the past, lower courts limited the recognition if the compensatory damages awarded by foreign country court seems excessive, and the Supreme Court implicitly agreed with the view by approving such lower court judgments. Since the establishment of Article 217-2 (1) of the Civil Procedure Act however, recent Supreme Court decisions have been continually ruling that recognition of compensatory damages ordered by foreign country court cannot be restricted based on Article 217-2 (1) and (although not explicitly stated) Article
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김도경(Kim, Dokyung) 법무부 국제법무정책과 2023 통상법률 Vol.- No.161
International arbitration procedures for investor-state dispute (ISDS) cases take a long time and consume a lot of money. Still, problems exist, such as inconsistent arbitral awards being maintained and criticism about whether the tribunals composition is appropriate. Replacing the arbitration process through a permanent investment court is a challenging alternative in reality, and resolving investment disputes between investors and the state through mediation procedures can be a realistic supplement to international arbitration. According to the United Nations Conference on Trade and Development (UNCTAD), approximately 20% of ISDS cases are resolved through settlement agreements shows the possibility of mediation. The governing rules for resolving ISDS cases include the International Bar Associations Rule for Investor-State Mediation, the UNCITRAL Mediation Rules adopted by the United Nations Commission on International Trade Law (UNCITRAL), and an ICSID mediation rule. There are also cases where mediation rules are stipulated in bilateral treaties (European Union-Singapore Investment Protection Agreement, etc.). In this paper, I looked at the contents worth referring to among the mediation rules contained in the bilateral treaty. Meanwhile, in ISDS cases, several obstacles make it difficult for the state to respond to mediation. Such obstacles include problems with the entity that will exercise mediation authority on behalf of the state, problems securing the budget, problems with communication between state agencies, problems with the appropriateness of exercising authority, psychological problems, problems with execution in case of non-compliance with the mediation and reconciliation agreement, etc. Regarding the possibility of mediation, referring to the analysis criteria for mediation suitability in the draft UNCITRAL guidelines on investment mediation prepared by the United Nations Commission on International Trade Law (UNCITRAL Working Group III) is necessary. In addition, among the ISDS incidents that our country has experienced, such as the Dayani incident, it appears worth attempting mediation in cases where there is no national financial expenditure, so we reviewed the incident in detail. Lastly, to increase the possibility of mediation in ISDS cases, it is necessary to include a mandatory mediation clause in the dispute resolution clause of the bilateral agreement that requires mediation to be attempted during the cooling-off period at the beginning of the case.
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이성웅(LEE SEONG WOONG) 법무부 국제법무정책과 2008 통상법률 Vol.- No.79
The paramount clause in the bill of lading, historically as a kind of exemption clause, was designed, according to international demands, in order to restrict the exemption scope of the responsibility and to protect the profit of a shipper by referring to international rules or certain state's rules with respect to the responsibility or exemption of a shipowner under the bill of lading. Accordingly, a law applicable to the shipowner's responsibility is designated in the paramount clause. In connection with this designation of the proper law under the paramount clause, interpretation questions might arise as to the relationship between the law generally applicable to the contract of the bill of lading and the law designated from the paramount clause.Despite the fact that the spilt choice(dpeage) of the governing law often occurs in the practice, it seems that a systemic solution has not been fully explored. The cases are focusing only on the result of governing law determination without elaborate consideration of processes and analyses for it. Likewise, it looks as proper researches have not been performed as to the matter of the split choice from the academic forces.Based on the American President Lines' case of 1999, this paper tries to systematically approach to the spilt choice matter. In relation to the determination and application of governing law, first, this paper explores whether the designation of a law applicable to the paramount clause leads to the split choice by examining the legal nature of the split choice. Second, it discusses how the split choice could be understood, if the law applicable to the paramount clause caused the split choice. Third, it tries to find a way to limit the application of the governing law which is mostly preferential to a shipowner and to protect the interests of a shipper, while analysing the limitation of the spilt choice.
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