국제재판관할합의의 허용요건과 실체적 유효요건에 관한 연구

초록

Because an international contract having foreign elements is connected to various countries it is uncertain which law will govern the contract and which court will have jurisdiction over contractual disputes out of the concerned countries. To eliminate the uncertainty parties to the contract commonly agree to the governing law and jurisdiction. When disputes happened a party files a suit to the agreed court the other parties often disputes the jurisdiction of the pending court arguing the validity of the jurisdiction agreement. For this reason validity of the jurisdiction agreement is very important. Prior to revision of the Private International Law in 2022, there was no provision dealing with the jurisdiction agreement. Fortunately, the revised law adopted a provision for the agreement. Therefore, it is essential to study the provision. The provision sets forth formal validity as well as substantial validity of the jurisdiction agreement declaring the permission of the agreement. This article discusses requirements for permission and substantial validity out of the above. The requirements for permission are derived from the nature of the jurisdiction agreement. The agreement which does not meet the requirements is not the permitted agreement, as a result, it is invalid. The substantial validity is regarding validity in terms of substantial law. When the agreement is valid the International Private Law will decide which country’s court will have jurisdiction. Certainly the Private International Law is not able to decide other foreign courts’ jurisdiction. However, foreign judgements by the courts without jurisdiction under Korean law may not be recognized in Korea so that the Private International Law indirectly contributes to decide the jurisdiction of foreign courts.

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