미국에 영업소를 둔 원고는 대한민국에 영업소를 둔 피고가 소유한 ‘암말’를 구매하는계약을 체결하였다. 이후 피고는 원고에게 계약의 파기를 주장하고 ‘암말’을 제3자에게 매각하였다. 원고는 피고를 상대로 미국 켄터키 주 우드포드 순회법원에 피고의 채무불이행으로 원인으로 한 손해배상을 청구하는 소송을 제기하였다. 피고는 이에 맞서 응소하였다. 분쟁에 적용될 준거법은 ‘CISG’이었고, 피고에게 원고에 대한 손해배상금 639,044달러 및그 지연손해금, 그리고 판결집행과 판결금 회수를 위한 소송비용 및 변호사보수의 지급을명하는 내용의 판결을 해당 법원에서 선고하였고, 이 사건은 이렇게 미국에서 확정되었다. 원고는 미국의 최종판결을 피고의 관할법원에서 승인 및 집행을 받기 위해 소송을 제기하자 피고는 항변과 상고 이유를 통해 ‘대상판결’의 중요 쟁점을 고찰해 볼 수 있었다. 피고는 미국 순회법원(켄터기 주 제1심 법원)이 재판관할권을 갖지 않았다고 항소를 하였고, 해당 사건의 준거법은 ‘CISG’가 아니라 민법임을 항소 하였고, 외국판결의 승인과 집행에 관하여 미국 켄터키 주와 대한민국 사이에는 상호보증이 없다고 주장하였다. 피고의항소 이유를 통해 계약위반의 경우 손해배상을 산정하는 방법과 종류의 관할별 차이가 무엇인지를 알 수 있었다. ‘원심’에서 피고의 패소가 결정된 후 피고는 상고하여 ‘대상판결’ 이 탄생하게 되었다. ‘대상판결’을 통해 손해배상이 고액인 외국판결을 승인하는 경우 과거문제점과 한계를 알 수 있었으며 승인과 관련한 새로운 동향과 움직임을 고찰해 볼 기회를갖게 되었다. 특히 민사소송법 제217조의2의 입법 취지가 ‘대상판결’을 통해 어떻게 구현되었는지를 목격할 수 있었다.
In April of 2007, a seller in Korea received the proposal to buy his horse called a ‘first violin’ at ＄150,000 from a buyer in the U.S. The seller accepted the buyer’s offer by signing the proposal and sending back. After a few days later of his signing, he tried to claim that the agreement was not effective. He notified his argument to the buyer. In November of 2007, the ‘first violin’ was sold at ＄230,000 to the third party. The buyer initiated the case in Kentucky against the seller for contractual damages in November of 2008. The seller filed the answer to the notice. ‘CISG’ was determined as an applied law in this case. In October of 2010, the case was finalized by making judgment for the plaintiff and awarding for damages, ＄639,044, against the seller. The buyer brought this case by asking the court of Korea to recognize and enforce this judgment. The seller strongly defended based on several issues. First, the seller argued that the judgment of foreign court was not effective based on the lack of jurisdiction. Second, the seller argued that the judgment of foreign court may not satisfy the requirements of Civil Procedure Act for the recognition of foreign country judgment. This is because the fact that the amount of damages by the foreign court is much higher than one by the court of Korea is against sound morals and social order of Korean court. Third, the seller argued that the judgment by the U.S. court may not be based on comity. In 2016, the Supreme Court of Korea made final decision for the seller by allowing the high amount of damages without any barriers. The Supreme Court declared that the foreign judgment with high amount of contractual damages may be recognized in Korea. A final and conclusive judgement by a foreign court may be recognized and enforceable in Korea, when all the following requirements according to Article 217 of Civil Procedure Act are met: 1. That the international jurisdiction of such foreign court is recognized under the principle of international jurisdiction pursuant to the statutes or treaties of the Republic of Korea; 2. That a defeated defendant is served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing him/her sufficient time to defend (excluding cases of service by public notice or similar), or that he/she responds to the lawsuit even without having been served such documents; 3. That the approval of such final judgment, etc. does not undermine sound morals or other social order of the Republic of Korea in light of the contents of such final judgment, etc. and judicial procedures; 4. That mutual guarantee exists, or the requirements for recognition of final judgment, etc. in the Republic of Korea and the foreign country to which the foreign country court belongs are not far off balance and have no actual difference between each other in important points. The high amount of damages by a foreign court might be violated with the third requirement. However, it is not clear whether the high amount of damages is not satisfied with third paragraph of article 217 (1). In particular, Article 217-2 of Civil Procedure Act may support how the recognition is allowed despite the large amount of damages by a foreign court. However, the article may not be helpful because of not clear content. According to this article, where final judgment, etc. on compensation for damage give rise to a result being markedly against the basic order of the Acts of the Republic of Korea or international treaties entered into by the Republic of Korea, a court shall not approve the whole or part of relevant final judgment. It seems that Korean court has broad discretion whether the foreign judgment is recognized in Korea or not. In fact, the punitive damages award by a U.S. court is currently not recognized by Korean court because the concept of punitive damages is not allowed in the Korean law and the court declared that it violated the sound morals and social order of Korea. In torts law of Korea, the damages a plaintiff is entitled to is only actual damages whose amount is eventually quite smaller than punitive damages. In other fields, the amount of damages in the U.S. is much larger than in Korea (for example contractual damages). This Supreme Court faced this issue and made a conclusion to accept by recognizing the judgment of the U.S.’s court with the large amount of contractual damages. Recently, the foreign judgment has easily been recognized in the Korean jurisdiction if formal requirements are met. The standard of substantial requirements for recognition and enforcement has relatively been low down in Korean court. I believe that this is global trend for efficiency of court review. No doubt that this Supreme Court decision has followed this trend.
