국제가사사건 재판례의 회고와 과제

초록

This article aims to commemorate the 20th anniversary of the enforcement of the Korean Private International Law Act (hereinafter “KPILA”) of 2001 by examining more than 90 judicial precedents in the Korean courts (about 60 cases applying the KPILA of 2001 and about 30 cases applying the KPILA of 1962) in the field of international family law, i.e. (i) international marriage law, (ii) international divorce law, (iii) international parental authority law, (iv) international maintenance law, (v) international guardianship law, and (vi) international inheritance law, and to identify an aspect of the current situation of the KPILA of 2001 by looking back on the judicial precedents of each specific field of international family law, and draw implications that can be referred to in the interpretation of international family law provisions under the KPILA of 2001. These judicial precedents include not only matters concerning the choice-of-law rules, but also matters concerning the international adjudicatory jurisdiction and the recognition and enforcement of foreign judgments. In addition, despite the judicial precedents to which the KPILA of 1962 were applied, this article’s review includes those cases that can still be considered as important for the interpretation of the KPILA of 2001. Firstly, this article reviews the judicial precedents in international marriage cases concerning the laws governing the substantial and formal requirements for the establishment of marriage, wrongful dissolution of de facto marriage, and matrimonial property system. Secondly, this article reviews the judicial precedents in international divorce cases concerning the international adjudicatory jurisdiction, the recognition and enforcement of foreign judgments, and the laws governing divorce and its incidental results, i.e. alimony, division of property, designation of the person for parental authority and nurture, and child-rearing expenses. Thirdly, this article reviews the judicial precedents in international parental authority cases concerning the international adjudicatory jurisdiction of dissolution of adoption cases, and the laws governing the establishment of paternity relationship (as a preliminary question for the acquisition of Korean nationality), denial of paternity relationship, right of legal representation, children’s family name, adoption, and dissolution of adoption, as well as child return claims under the Hague Child Abduction Convention. Fourthly, this article reviews the judicial precedents in international maintenance cases concerning the laws governing the maintenance for minor children and the establishment of the paternity relationship as a preliminary question. Fifthly, this article reviews the judicial precedents in international guardianship cases concerning the international adjudicatory jurisdiction and the applicable law. Sixthly, this article reviews the judicial precedents in international inheritance cases concerning the international adjudicatory jurisdiction and the laws governing inheritance, including the renunciation or the portion of the inheritance, and the formal validity of a will.

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