2022년 개정 국제사법 제39조와 제44조에 대한 검토

초록

The Korean Act on Private International Law, which came into force on July 5, 2022, accepts both the European Union (EU)’s Brussels regime and the purposeful direction test of the United States (US) courts regarding jurisdiction in torts claims. Specifically, the Act accepts the place of the damaging/infringing act, the place of the damage/the effect of the act, and the directed place as the basis for jurisdiction in cases of torts and intellectual property rights infringement. However, unlike the two legal systems mentioned above, the Act provides a standalone rule on specific jurisdiction over intellectual property rights infringement cases (Article 39) that is separate from the rule on specific jurisdiction over torts cases (Article 44). Various opinions have been offered regarding the appropriateness and interpretation of Articles 39 and 44. In practice, it is necessary to interpret these two provisions consistently. First, in Korean private international law, which can be considered as a hybrid model of the two different approaches, both the interpretation of the place of damage in the EU system and the interpretation of the directed place in the US system should be avoided. Each of the three bases of jurisdiction―the place of the damaging/infringing act, the place of the damage/the effect of the act, and the directed place―must be interpreted in a consistent manner by considering the burden of proof born by the plaintiff. Second, the appropriateness of having a standalone jurisdictional rule for intellectual property infringement separate from the jurisdiction rule for torts can be found in the distinct characteristics of intellectual property infringement that distinguish it from general torts. While Article 39 stipulates that the grounds for jurisdiction on infringement of intellectual property rights are the same as those of torts, it stipulates that the scope of the jurisdiction should be limited, in principle, to the Korean territory. Article 39, moreover, has no provision for denying jurisdiction on the grounds of foreseeability unlike Article 44. Therefore, the Act should be understood as legislation that considers the difference between tort and infringement of intellectual property rights.

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