[2] Matters to be considered in determining international jurisdiction under Article 2(2) of the Act on Private International Law / Whether Article 2 of the Act on Private International Law applies likewise to family cases (affirmative), and the standard for determining whether there exists a substantial relation in family cases

[3] Whether substantial relationship between the Republic of Korea and the relevant case may be acknowledged in a case disputing a marital relationship, such as judicial divorce, in which the facts constituting a principal cause for the divorce claim, even though the nationality or domicile of the parties to the Republic of Korea does not exist, were formed in the Republic of Korea, and the property in the case claiming a divorce along with the divorce, are sharply disputed (affirmative); and whether the defendant may take a positive consideration in recognizing the jurisdiction of the court of the Republic of Korea to legally receive copies of the complaint and actively respond to the circumstances (affirmative)

[2] Article 2(2) of the Act on Private International Law provides that “The court shall determine whether international jurisdiction exists, taking into account the provisions of jurisdiction in domestic law, and shall take into account the special nature of international jurisdiction in light of the purport of the provision of paragraph (1).” Therefore, when determining international jurisdiction, the provisions of jurisdiction in domestic law shall be considered as the basis for the most basic judgment, but it may be reasonably revised to conform to the ideology of allocation of international jurisdiction, taking into account the legal nature of the

Article 2 of the Act on the International Jurisdiction also applies to family cases. Therefore, if a court of the Republic of Korea has the jurisdiction over a family case, the Republic of Korea shall have a substantial relation to the relevant case or the case in question. However, unlike general civil cases, family cases have a significant impact on the basic discussion of social life as a case concerning the status of family members and relatives who serve as the foundation of community life, or property, rights, rights, and other legal relations closely related to their status relationships. In family cases, not only the defendant's right of defense is guaranteed, but also the elements of public value, such as the appropriateness and efficiency of trial on the relevant issue, the protection of legitimate interests of the parties, family system, and social order, as well as the jurisdiction of domestic law, such factors as the nationality, address, or habitual residence of the parties concerned, the place where the dispute occurred (for example, the place where the child lives in question, the location of the child in question, the place where the child in question is the principal issue, the applicable law of the relevant parties in question, the necessity of interpretation and convenience of litigation and related data, etc.

[3] In the case of dispute over a marital relationship such as judicial divorce, even though the nationality or domicile of the parties to the dispute is difficult to be recognized under the jurisdiction under the domestic law in the Republic of Korea due to lack of nationality or domicile of the parties to the dispute, the facts constituting the principal cause of the divorce claim were formed in the Republic of Korea (including the case where the father’s nationality or domicile is formed as one of the married couple stays in the Republic of Korea for a considerable period of time, etc. even if the father’s nationality or domicile is in a foreign country, and the husband’s separate status is formed as one of the married couples sojourn in the Republic of Korea) and the case claimed in the division of property,

1. Whether international jurisdiction exists in a family case;

A. Key issue

The Plaintiff filed a claim for divorce against the Defendant on the ground that the Defendant stayed in the Republic of Korea, not Canada, which is a nationality state, and left the Republic of Korea for more than one year, and abandoned the Plaintiff in bad faith, and caused mental suffering, such as deceiving the previous marital relationship and the use of property, and accordingly, claims for consolation money and division of property. The lower court accepted the Plaintiff’s divorce claim on the premise that the court of the Republic of Korea has jurisdiction over the case, and dismissed the claim for consolation money, but the claim for consolation money was dismissed. The Defendant asserts that it is reasonable to determine the case in the

The main issue of this case is whether the court of the Republic of Korea has international jurisdiction in this case, in which the original defendant's nationality and domicile both are Canada.

B. Criteria for determining international jurisdiction in family cases

Article 2(1) of the Private International Act provides, “Where a party or a case in dispute is substantially related to the Republic of Korea, a court has the international jurisdiction. In this case, the court shall comply with reasonable principles consistent with the ideology of the allocation of international jurisdiction in determining the existence of substantial relation.” The term “actual relation” means that the party or the case in dispute is related to the one in question to the extent that it justify the exercise of jurisdiction by a court of the Republic of Korea. In determining this, reasonable principles consistent with the ideology of the allocation of international jurisdiction, such as equity, court’s propriety, speed and economy, shall be complied with. Specifically, as well as personal interests, such as equity, convenience, predictability of the party, and appropriateness, prompt and efficient judgment, and effectiveness of judgment, the court or the State’s interests, such as the appropriateness, effectiveness of judgment, should also be taken into account. Whether there is a need to protect any interest of various international jurisdiction should be reasonably determined based on an individual case’s substantive relation (see Supreme Court Decisions 2002Da59788, Jan. 27, 2005; 2008Da163697, Jul. 16, 297

Article 2(2) of the Private International Act provides, “The court shall determine the existence of international jurisdiction in consideration of the provisions under the jurisdiction of domestic law, and shall take into account the specificity of international jurisdiction in light of the purport of the provision under paragraph (1).” Therefore, when determining international jurisdiction, the jurisdiction provisions of domestic law shall be considered as the basis for the most basic judgment, but it may be reasonably revised to conform to the ideology of allocation of international jurisdiction in consideration of the legal nature of the relevant case and other individual and specific circumstances (see the foregoing Supreme Court Decision 2016Da337

Article 2 of the Act on International Jurisdiction applies to family cases as well as to family cases. Therefore, if a court of the Republic of Korea has the jurisdiction over a family case, the Republic of Korea must have a substantial relationship with the party to the relevant case or the disputed case (see Supreme Court Decision 2013Meu1196, May 16, 2014). However, unlike general civil cases, a family case has a significant impact on the basic discussion of a social life as a case concerning the status of a family member and a family member who is based on community life, or property, rights, rights, and other legal relations closely related to a family relationship, as well as the guarantee of the defendant's right to defense, the propriety and efficiency of a judgment on the relevant issue, protection of legitimate interests of the parties, family system, and maintenance of social order. Therefore, in a family case, the "actual relation" should be determined in consideration of not only the jurisdiction of domestic law, but also the nationality, address or habitual residence of the parties to the relevant case, the place where the parties to a dispute occurred (e.g., revocation of marriage or divorce witness and the collection of physical rights and interests of the relevant case, where property are applied.

The Family Litigation Act shall, in principle, have jurisdiction over a family litigation by the family court in the location of a defendant’s general forum (Article 13(1)), and special provisions on jurisdiction over a marriage lawsuit (Article 22). According to such a legal divorce lawsuit, where a married couple has a general forum within the jurisdiction of the same family court, the said family court, where a married couple has a general forum within the jurisdiction of the same family court, and where a married couple has a general forum within the same domicile, the said family court shall have exclusive jurisdiction, and where it does not fall under such general forum, the family court in the location of the other party’s general forum shall be the competent court (Article 46). The family court in the location of the family court in which the other party’s general forum is located shall have jurisdiction over a claim for a judicial divorce (Article 46). Where the grounds for the claim are based on the same factual basis or a single claim becomes a premise for the propriety of a different claim, the lawsuit may be instituted in one lawsuit, and where the family litigation case and a family non-litigation case are pending in a family court’s exclusive jurisdiction.

In light of the provisions of these domestic laws, even in a case involving a marital relationship such as judicial divorce, where there is no nationality or domicile of the parties in the Republic of Korea and it is difficult to recognize jurisdiction under the provisions of domestic law with a Korean court, the facts constituting the principal cause of the claim for divorce have been formed in the Republic of Korea (such as where the father’s nationality or address is in a foreign country but the spouse stays in the Republic of Korea for a considerable period of time and thus the spouse’s separate status is formed), and in the case of property division claimed together with divorce, there is a high room for recognizing the substantive relationship between the Republic of Korea and the relevant case in terms of predictability, remedy of rights, convenience of the relevant issues, and effectiveness of the

Furthermore, if the defendant lawfully served a duplicate of the complaint and actually actively responded to the complaint, such circumstance may be positively considered in recognizing jurisdiction with the court of the Republic of Korea (see Supreme Court Decision 2005Meu84, May 26, 2006).

International jurisdiction shall not be exclusive jurisdiction, but concurrently exist. The jurisdiction of the court of the Republic of Korea shall not be readily denied solely on the ground that the jurisdiction of the court of another country may be recognized (see Supreme Court Decision 2016Da33752, supra).

C. Facts

According to the reasoning of the lower judgment and the record, the following circumstances are revealed.

(1) The Plaintiff and the Defendant filed a marriage report on July 2, 2013, and resided in Qubec State, Canada.

(2) The Defendant resided in the Republic of Korea from November 11, 2013 to December 17, 2013; from April 2, 2014 to May 2, 2014; from October 1, 2014 to October 25, 2014; from November 5, 2014 to May 22, 2015; however, from May 22, 2015, the Defendant resided in the Republic of Korea at a place other than the domicile of the original Defendant; from May 22, 2015 to the domicile of the Non-Party 1, Seoul Immigration Office (hereinafter referred to as the “Non-Party 2”) at the time of the issuance of the instant certificate of sojourn to the domicile of the Non-Party 1, 2013 (hereinafter referred to as the “Korea Immigration Office”) at the time of the issuance of the instant certificate of residence to the domicile of the Non-Party 1, 2013.

On December 7, 2014, the Plaintiff entered the Republic of Korea on December 7, 2014 and entered the Republic of Korea with the Defendant’s words, women, Nonparty, etc., and returned to Canada on January 19, 2015.

(3) On March 19, 2015, the Plaintiff filed a lawsuit seeking a divorce against the Defendant with the Seoul Family Court. The reason for divorce claimed by the Plaintiff was “when the spouse abandons another spouse in bad faith” under Article 840 of the Civil Code of the Republic of Korea (Article 840) and “where there is any other serious reason making it difficult to continue the marriage” (Article 8 of the Canadian Divorce Act, and later, the reason for filing a claim for divorce was changed to “where the other spouse renders physical and mental pain to the extent that his/her spouse is unable to maintain his/her living together,” and “where the other spouse gets unable to live together.”

(4) On May 19, 2015, the Defendant filed an application for the transfer of the instant case to the Goyang Branch of the District Court on the grounds that the Defendant, via his/her legal representative, was residing in Goyang city, and filed an application for the transfer to Goyang Branch of the District Court. The Seoul Family Court transferred the instant case to Goyang Branch of the District Court on June 12, 2015.

(5) On May 31, 2016, the court of the first instance (the appellate court’s appellate court’s appellate court’s appellate court’s appellate court’s appellate court’s appellate court’s appellate court’s appellate court’s order to present its opinion on whether the Plaintiff and the Defendant have international jurisdiction over the instant case at a Korean court. While disputing the existence of grounds for divorce and the subject of division of property, the Defendant

(6) After marriage with the Plaintiff, the Defendant purchased the apartment house located in Busan (hereinafter referred to as the “ apartment house located in Busan”) from the Defendant’s mother and purchased the automobile in the name of the Nonparty. However, in the instant lawsuit, the Defendant asserted that, after the Plaintiff left the lawsuit, the Defendant purchased the apartment house located in Busan to return to the Republic of Korea with the funds provided by the Plaintiff to live together with the Plaintiff.

(7) On May 15, 2015, the Plaintiff filed a provisional attachment against the apartment located in Busan, and filed a complaint against the Defendant and the Nonparty on the charge of fraud and compulsory execution regarding the purchase of the apartment located in Busan, and the registration of the establishment of the right to lease on a deposit basis or lease on a deposit basis.

D. Whether the courts of the Republic of Korea recognized international jurisdiction in this case

Examining the above facts in light of the legal principles as seen in B., inasmuch as the parties to the instant case or the case in dispute are substantially related to the Republic of Korea, a court of the Republic of Korea has the international jurisdiction in this case. The reasons are as follows.

(1) Prior to the filing of the instant lawsuit, the Defendant reported the address of Goyang-si residing in the Republic of Korea prior to the filing of the instant lawsuit, and acquired real estate and the vehicle in the Republic of Korea and owned and used it. At the time of filing the instant lawsuit, the Defendant actually resided in the Republic of Korea with the basis of living

(2) The part mainly disputed between the Plaintiff and the Defendant in this case is whether the Defendant suffered mental pain to the Plaintiff due to malicious abandonment, deception, etc. in relation to the grounds for divorce, and whether the Defendant’s property existing in the Republic of Korea is subject to division of property. Accordingly, the dispute in this case is practically closely related to the Republic of Korea.

(3) The Plaintiff and the Defendant are currently holding the current Canadian nationality, but both of them are having relations with the Republic of Korea. In particular, the Defendant purchased real estate located in the Republic of Korea from time to time after marriage with the Plaintiff and had stayed in the Republic of Korea, and there seems to be no big difficulty in litigation in the Republic of Korea as they reside in the Republic of Korea. In addition, in the situation where the Plaintiff asserted the division of property against the apartment in Busan, which is located in the Republic of Korea, and provisionally seized the relevant real estate, the Plaintiff may

(4) The Plaintiff, a Canadian national, clearly expresses his/her intent to have the Defendant decide on himself/herself to a Korean court. The Defendant also appointed an attorney in the Republic of Korea and responded to the case. The substantial pleadings and hearings on the merits have been conducted by the Korean court for a considerable period of time.

(5) It is difficult to see that the facts of the instant case can be proved through documentary evidence, such as most of the certificates of entry and departure, written contracts, and account transfer records, and thus, it is not always necessary to conduct on-the-spot investigations in Canada, and it cannot be deemed that the lawsuit in the Republic of Korea is considerably unfavorable to the Defendant. On the other hand, if the Canadian court should review the instant case only by denying the international jurisdiction of the court of

(6) The governing law is a matter of whether it is appropriate to resolve a dispute in accordance with the order of a country’s substantive law, whereas the international jurisdiction is a matter of whether to recognize the jurisdiction to a court of a country in view of the party’s equity, propriety, speediness, economy, etc. of the dispute. This two are governed by different ideas. Even if the governing law of the legal relationship of this case is Canada Divorce Act or Canada Qubec Civil Code, such circumstance alone does not deny the substantial relationship between the lawsuit of this case and the Korean court.

(7) Since international jurisdiction is not exclusive jurisdiction but it may exist concurrently, even if jurisdiction is recognized in Canada with respect to the instant case, it cannot be a reason to deny jurisdiction of a court of the Republic of Korea.

(8) In short, the lower court did not err by misapprehending the legal doctrine on international jurisdiction, contrary to what is alleged in the grounds of appeal, and did not adversely affect the conclusion of the judgment, on the premise that the court below acknowledged the international jurisdiction of the Republic of Korea on the instant case.

2. Whether there is a misapprehension of legal principles as to division of property

The lower court, in accordance with Articles 38(1) and 37 of the Act on Private International Law of the Republic of Korea, determined the division subject and the value of the instant claim, by applying the Civil Code of Canada, the State of Qubec, the home country of the original Defendant, to the division of property.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the subject of division of property at the time of divorce, or by exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Dong-won (Presiding Justice)