법정채권의 준거법 분야 ｢국제사법｣ 개정 검토 - 주요국 국제사법 관련 규정의 비교를 중심으로 -

In 2001, when full-fledged amendments were made to the Private International Law Act (PILA) in Korea, there were relatively few revisions in the field of non-contractual obligations compared to the field of contracts. Compared to the previous PILA i.e., Seopwoesabeop, no substantive amendment to the essential part of the connection factors in the field of non-contractual obligations. Accordingly, the PILA was intended to provide mere separate articles for negotiorum gestio, unjust enrichment and torts, which embody the location of cause of the acts that was the connection fact of non-contractual obligations in the Seopwoesabeop. Of course, there was some advanced aspects in the PILA compared to the Seopwoesabeop, such as the ex post change of the applicable law, the accessory connection, and the introduction of the common habitual residence as new connection factors. The reason that any provision for special connection rules for specific types of torts has not been newly placed in the PILA does not lie in the no necessity, but discussion and consensus as for the types of torts and connection rules suitable for the characteristics of specific types of torts were not sufficiently progressed and formed. The other reason is that related substantive civil laws or special laws have not been sufficiently developed in the field.
However, 20 years have passed since the enforcement of the fully revised PILA, and the private international law Acts in Japan, China and Taiwan in Northeast Asia that completed modernization of private international law later than Korea introduced specific rules for torts. Besides, it is time to consider how to legislate the established precedents of international torts in terms of improving predictability. In addition, in the field of substantive law, the Product Liability Act came into effect on July 1, 2002, and the need to introduce separate connecting factors for torts in relation to the international product liability has increased. Accordingly, in order to examine issues to be considered when revising the PILA in relation to the special rules for non-contractual obligations, this paper comparatively reviews the rules for non-contractual obligation under the Rome II Regulation and the private international law Act of Switzerland, Japan, China and Taiwan, and suggests implications that could be referenced in the revision of the PILA.
In the field of non-contractual obligations where party autonomy is allowed only to a limited extent, the need to enhance legal certainty and predictability is superior to that of the contract field. One of the important functions of private international law is that although the exact outcome of a dispute cannot be known, the parties can control their legal risks to a certain extent by allowing them to have predictability as for which law will govern their legal relations. This kind of function of private international law is a more necessary where party autonomy is limited. In this regard, it is suggested that the current connection policy that makes the connection factor of general torts too advantageous to victims needs to be balanced. However, it is also necessary to consider that the trend of modern tort liability is more concerned with the protection of victims. In particular, it should be taken into account that these characteristics are more clearly required in the field of special torts where consideration of substantive law has more influence on the connection policy of private international law.