SHERP

개정루가노협약에 따른 계약사건의 국제재판관할
International Jurisdiction in Matters relating to Contract under the Revised Lugano Convention

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Authors
석광현
Issue Date
2008
Publisher
서울대학교 법학연구소
Citation
법학, Vol.49 No4 pp.413-454
Keywords
브뤼셀협약브뤼셀규정개정루가노협약계약사건의 국제관할Brussels ConventionRevised Lugano Conventioninternational jurisdiction in matters relating to contractspecial jurisdictionBrussels Regulation의무이행지
Abstract
In this article the author reviews issues on international jurisdiction (“jurisdiction”)
in matters relating to contract under the Lugano Convention revised in
2007 and draws lessons for the jurisdiction under the Conflict of Laws Act of
Korea, which was revised in 2001. Under the Lugano Convention, in matters
relating to a contract, a person domiciled in a contracting state may be sued in
another contracting state, that is, in the courts for the place of performance of
the obligation in question (Article 5⒧). The meaning of “the place of performance”
and that of “the obligation in question” have been the subject of much
discussion. Since the obligation in question means the obligation which forms the
basis of a lawsuit, lawsuits arising from the same sales contract could fall within
the jurisdiction of different states depending upon whether a seller or a buyer
files the suit as plaintiff. In addition, pursuant to the Tessili rule of the
European Court of Justice, the place of performance had to be determined by
the law applicable to the obligation in question designated by the choice of law
rules of the forum. Thus, in order to determine the jurisdiction issues, one had
to refer to the choice of law rules and the applicable law first. This position has
been criticized as complicating the determination of jurisdiction and as preventing
uniform interpretation of the Lugano Convention. In response to these critics the
Revised Lugano Convention has introduced an autonomous definition of the place
of performance, but only for contracts for the sale of goods and contracts for
the provision of services. The place of performance is based upon the concept of
characteristic performance of those contracts. However, the Revised Lugano...
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/10249
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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