새로운 유럽공동체법 (Rome II Regulation)상 불법행위에 관한 준거법

THE LAW APPLICABLE TO INTERNATIONAL TORT IN THE NEW EC REGULATION (ROME II)

As of 11 January 2009, Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) will be applicable in twenty-six European Union Member States. The Rome II Regulation applies to events giving rise to damage which occur after its entry into force on 19 August 2007 in proceedings commenced after 11 January 2009. This Regulation provides conflict of law rules for tort and delict, unjust enrichment and restitution, negotiorum gestio and culpa in contrahendo. It has a wide scope covering almost all issues raised in cases of extra-contractual liability. The majority of the rules in the Rome II Regulation are inspired by existing rules from European countries. Others are pioneering, innovative new rules. Compared to many of the national systems of private international law of non-contractual obligations, Rome II Regulation introduces precise, modern and well-targeted rules on the applicable law that are well adapted to the needs of European actors. It provides, in particular, specific rules governing a certain number of specific torts (e.g. product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights, and industrial action). The provisions of the Regulation will considerably increase legal certainty on the European scale, while at the same time giving courts the freedom necessary to deal with new or exceptional situations. The material scope of the Rome II Regulation is set out in Article 1. The Regulation applies to non-contractual obligations in “civil and commercial matters”, a term which is to be understood in the same sense as in the Brussels I Regulation. The Regulation would therefore not apply to revenue, customs or administrative matters. Article 1(2) specifically excludes non-contractual obligations arising out of family relationships, matrimonial property regimes and succession, obligations under negotiable instruments, the personal liability of officers and members for the debts of a corporate and incorporated body, the personal liability of persons carrying out a statutory audit, the liability of settlors, trustees and beneficiaries of a trust, and, finally, non-contractual obligations arising out of nuclear damage. The approach taken by the Commission in the Regulation is to divide non-contractual obligations into two major categories, those that arise out of a tort or delict and those that do not. The latter category would include quasi-delictual or quasi-contractual obligations, including, in particular, unjust enrichment and negotiorum gestio (agency without authority). Article 2 provides that the Regulation is to have universal application so the uniform conflict rules laid down in the Regulation can designate the law of an EU Member State or of a third country. Rome II is not restricted to cross border or intra Community disputes. Its rules would apply and could lead to the application of Californian law in a case before a United Kingdom court brought by an American claiming damages for a traffic accident caused by a United Kingdom citizen when driving on holiday in California. Article 3 lays down the general rules for determining the law applicable to non-contractual obligations arising out of a tort or delict. The law applicable is to be the law of the country in which the damage arises or is likely to arise irrespective of the country in which the event giving rise to the damage occurred or of the country or countries in which indirect consequences of that event arise. There are two exceptions to the general rule. Article 3(2) contains a special rule that where the person claimed to be liable and the person who has allegedly sustained damage are habitually resident in the same country, the law of that country would be applicable. Article 3(3) contains a more general exception. Where it is clear from all the circumstance