국제민사소송절차와 국제도산절차에서의 외국재판

A Foreign Decision in the International Civil Litigation and International Insolvency Procedure – Focused on the Recognition and Enforcement of Foreign Provisional and Protective Measure –

In 2014 Korean Code of Civil Procedure(KCCP) was revised to enlarge the scope of the recognition and enforcement of foreign decisions. Before the revision, Art. 217 KCCP describes the “foreign judgment” and acknowledged to have the same force shall be recognized for recognition and enforcement. In Korean civil procedural law there are tree types of decisions such as judgment, order and disposition. A judgment shall be rendered by the court(not by judge) and has res judicata. Also ordinarily a judgment needs a trial proceeding. In contrast, order and disposition have not res judicata and do not need necessarily trial proceeding. Through 2014 revision of Art. 217 KCCP and Art. 26 KCCE(Korean Code of Civil Enforcement) not only foreign judgment but also foreign order and disposition shall be included for recognition and enforcement. Now the author calls it “decision” including judgment, order and disposition. However, they did not regulate Foreign Provisional and Protective Measures(FPPM) explicitly and we doubt that FPPM could be included in foreign decisions. In these days provisional and protective measures already become decisive devices for securing debtor’s asset in international business and we should recognize and enforce the FPPM rendered through inter partes proceeding or hearings. According to The Korean Supreme Court’s decisions related with international civil litigations and insolvency cases, we could make a deduction that FPPM could be included in “decisions” for recognition and enforcement reasonably.