코로나 19와 불가항력확인서의 법적 성격 - 국제사법상 국제적 강행규정의 분석을 중심으로 -

초록

The China Council for the Promotion of International Trade(the "CCPIT") has recently issued a large number of force majeure certificates to contracting parties to certify disruptions caused by COVID-19. Some countries, such as Russia and Italy, also have these force majeure certificate systems. The legal status of the CCPIT certificates is, however, uncertain under Chinese law. Unlike Russia and Italy, which both have their respective Chamber of Commerce to issue the certificate, the CCPIT is officially composed of civilians, although its Articles of Association was said to have been approved by the State Council. These research also authorized CCPIT to issue such force majeure certificates. The CCPIT was handling force majeure matters prior to the COVID-19 outbreak, and its force majeure certificate could command certain respect from the Chinese courts. This suggests that a CCPIT certificate may have certain evidentiary value under Chinese law. The public and national interests will prima facie be reflected in private international law in the form of mandatory rules and public policy. The public interest in COVID-19 demands analysis in this aspect even if it is not generally necessary for a standard force majeure case. Article 4 of the Choice of Law Act provides that Chinese mandatory law will apply regardless of the applicable foreign law. Particularly, law on public health is among one of the five specific categories of laws identified as being mandatory under the SPC interpretation. It is also highly unlikely for an English court to apply a Chinese mandatory rule through Article 3(3). In any event, it would be highly unlikely for Article 3(3) of Rome I Regulation to have a chance to apply in the first place. This is because the Article would only apply when all factors of the case point to a foreign country, except the express choice by the parties. Therefore, even if the public interest in COVID-19 requires an analysis of public policy-related rules of private international law, it is highly unlikely that they would be applied for public policy reasons.

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