Abstract
On April 7, 2001, the Private International Law Act (hereinafter, the “KPILA”), which was completely amended by Law No. 6465, came in force and has been 20 years as of July 1, 2021. This article briefly introduces the judgments Korean court has made in relation to non-contractual obligations, assignment of receivables and legal subrogation over the past 20 years since the enforcement of the KPILA. The followings are the general review of the court cases of non-contractural obligations, assignment of receivables and legal subrogation for 20 years after the enforcement of the KPILA.
In the area of non-contractual obligations, no case in relation to the negotiorum gestio is found under the KPILA as under the Seopwoesabeop which is the previous Korean private international law Act before the current one. Judgments related to the negotiorum gestio are also quite rare as in foreign countries; thus, it is not surprising that there is no case law that is related to the negotiorum gestio in Korea.
In fact, it can be said that the cases in relation to unjust enrichment that deal squarely with the issues related to unjust enrichment are the domain name case to which the Seopwoesabeop was applied, the case of provisional payment return, and the Netflix case to both of which the KPILA was applied. Among them, the domain name case has the most significant implications in that it shows that further development is required for the concept of the place of enrichment.
Tort cases account for the overwhelming number of cases in relation to non-contractual obligations, and 17 cases have been reviewed in this article. Although the forced labor case applied the Seopwoesabeop the case not only has the crucial significance as the first Supreme Court decision that acknowledged the victims’ right to choose the connecting factor between the lex loci damni and the lex loci delicti commissi but also fully recognized the Constitutional Law value in PIL issues, demonstrating that private international law is also closely related to the Constitution Law. In addition, the defoliant case, that applied the Seobwoesabeop and was related to the decision of international jurisdiction though, is remarkable, in that the case required predictability of the defendants in the case of product liability. The STX Pan Ocean case is also noticeable in that it is the first case that applied the accessory connection in torts under the KPILA. After the STX Pan Ocean case, several cases are found that applied the accessory connection provision through which tensions related to the determination of the lex loci delicti commissi could considerably relaxed.
As for the precedents related to assignment of receivables and legal subrogation, the seamen’s wage case shows that the cases with respect to international assignment and subrogation are significantly related to maritime cases of which characteristics are also well found in tort cases. This means that maritime case involves international characters in many cases; thus require private international law analyses.
In the area of non-contractual obligations, no case in relation to the negotiorum gestio is found under the KPILA as under the Seopwoesabeop which is the previous Korean private international law Act before the current one. Judgments related to the negotiorum gestio are also quite rare as in foreign countries; thus, it is not surprising that there is no case law that is related to the negotiorum gestio in Korea.
In fact, it can be said that the cases in relation to unjust enrichment that deal squarely with the issues related to unjust enrichment are the domain name case to which the Seopwoesabeop was applied, the case of provisional payment return, and the Netflix case to both of which the KPILA was applied. Among them, the domain name case has the most significant implications in that it shows that further development is required for the concept of the place of enrichment.
Tort cases account for the overwhelming number of cases in relation to non-contractual obligations, and 17 cases have been reviewed in this article. Although the forced labor case applied the Seopwoesabeop the case not only has the crucial significance as the first Supreme Court decision that acknowledged the victims’ right to choose the connecting factor between the lex loci damni and the lex loci delicti commissi but also fully recognized the Constitutional Law value in PIL issues, demonstrating that private international law is also closely related to the Constitution Law. In addition, the defoliant case, that applied the Seobwoesabeop and was related to the decision of international jurisdiction though, is remarkable, in that the case required predictability of the defendants in the case of product liability. The STX Pan Ocean case is also noticeable in that it is the first case that applied the accessory connection in torts under the KPILA. After the STX Pan Ocean case, several cases are found that applied the accessory connection provision through which tensions related to the determination of the lex loci delicti commissi could considerably relaxed.
As for the precedents related to assignment of receivables and legal subrogation, the seamen’s wage case shows that the cases with respect to international assignment and subrogation are significantly related to maritime cases of which characteristics are also well found in tort cases. This means that maritime case involves international characters in many cases; thus require private international law analyses.
| Translated title of the contribution | A Reflexion of Korean Court Cases for 20 years in Areas of Non-contractual Obligations Under the Korean Private International Law Act Fully Revised in 2001 |
|---|---|
| Original language | Korean |
| Pages (from-to) | 351-449 |
| Number of pages | 99 |
| Journal | 국제사법연구 |
| Volume | 27 |
| Issue number | 2 |
| DOIs | |
| State | Published - 2021 |