국제법상 해외에서의 집행관할권 행사의 한계와 조정

초록

Jurisdiction is an another manifestation of State sovereignty. As long as the sovereignty of a State exists, the scope of exercise of enforcement jurisdiction is limited by the fundamental principles of international law such as those of sovereign equality, non-intervention, and territorial integrity. Therefore, a State cannot exercise its enforcement jurisdiction in another State without the latter state's permission. According to general public international law foreign State is in principle under no duty within the limits of its sovereignty to tolerate the performance of sovereign acts by a State. In other words, the general rule of international law indicates that the exercise of enforcement jurisdiction by one state is strictly limited to the territory of that state. When a state exercises its enforcement jurisdiction within a foreign territory, such activity may commit a violation of the sovereignty of the latter state either because of the nature of the activity or because of the purpose for which the activity is done. any exercise of enforcement jurisdiction which may cause such infringements is prohibited. One State cannot carry out within the territory of another State such activities which only the officials of the local State are entitled to do. However, if the factors of exercising sovereign or prerogative authority have been excluded, such activities may be executed by one State in the foreign territory. So if a state is merely giving notice to a person in a foreign state that one has violated its domestic law, and if such notice does not consist the elements of a sovereign's order or sanction, sending such notification overseas may be permissible. Also, it would be difficult to consider such activities that any private persons can also participate in overseas as a form of enforcement jurisdiction. One State may not exercise its police powers in the territory of another State. Therefore, it is problematic, especially when kidnapping by one State of a suspect located in another State occurs, that many states, especially the U. S., still apply the Ker-Frisbie rule and acknowledge the domestic court's jurisdiction to adjudicate. To modify this kind of infringement of foreign state's sovereignty, domestic courts of forum State must deny the assertion of the jurisdiction to adjudicate, like how some common law states have done today. And the most definite and effective method to overcome the limits of exercising enforcement jurisdiction would be to gain the other state's consent. Thus it has come to one's attention that it is important to conclude treaties between relevant parties in places that need enforcement.

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