國際的 訴訟競合을 둘러싼 몇 가지 問題點 -國際民事訴訟原則과의 整合性을 中心으로-

초록

Even in solving the one problem of international lis pendens, it is impossible to make a compete solution without a unified procedural system. Especially, the distance between common law and civil law is so big and there is no compromise even with the basic problems of the time order of lawsuit and the determination of the identity of litigation matter. Therefore, it is necessary to begin with bilateral conventions between countries that have similar legal systems. In doing so, it goes without saying that it is necessary to have a Korea-Japan bilateral convention. The step preceding this process is for each Korea and Japan to create an expressly written law of international jurisdiction. In this preceding process, it is important to make efforts to consider each country’s positions carefully. In this plain, Japan’s legislation effort related to international jurisdiction is very provoking, and it is also very meaningful that some scholars in Korea stated opinions on the preliminary draft that was prepared in the process. Specially if we only look in relation to international lis pendens, the preliminary draft’s position which tried to provide expressly the stop of procedure under the premise of the expectation of recognition had many meanings to us. Moreover, it was a desirable direction that the later made proposal in the first summary draft made Japanese law to consider Japanese and foreign country courts’ status of litigation in addition, unlike the preliminary draft. However, the final proposal draft’s giving up of an express provision on this part is very undesirable for us. Even in solving the one problem of international lis pendens, it is impossible to make a compete solution without a unified procedural system. Especially, the distance between common law and civil law is so big and there is no compromise even with the basic problems of the time order of lawsuit and the determination of the identity of litigation matter. Therefore, it is necessary to begin with bilateral conventions between countries that have similar legal systems. In doing so, it goes without saying that it is necessary to have a Korea-Japan bilateral convention. The step preceding this process is for each Korea and Japan to create an expressly written law of international jurisdiction. In this preceding process, it is important to make efforts to consider each country’s positions carefully. In this plain, Japan’s legislation effort related to international jurisdiction is very provoking, and it is also very meaningful that some scholars in Korea stated opinions on the preliminary draft that was prepared in the process. Specially if we only look in relation to international lis pendens, the preliminary draft’s position which tried to provide expressly the stop of procedure under the premise of the expectation of recognition had many meanings to us. Moreover, it was a desirable direction that the later made proposal in the first summary draft made Japanese law to consider Japanese and foreign country courts’ status of litigation in addition, unlike the preliminary draft. However, the final proposal draft’s giving up of an express provision on this part is very undesirable for us.

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