National Federation of Bus Transport Business Associations (Law Firm Korea, Attorneys Lee Young-dae et al., Counsel for the plaintiff-appellant)

United States

November 19, 2008

Seoul Central District Court Decision 2003Gadan291280 Delivered on June 2, 2004

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 92,75,710 won with 5% interest per annum from October 20, 201 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the following day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by taking into account the whole purport of the pleadings in the descriptions of Gap evidence 1 to 3, Gap evidence 4-1, 2, and Gap evidence 5.

A. From September 6, 1991, the non-party worked as a high-tension electrical engineer at the USF headquarters located in Yongsan-gu Seoul Metropolitan Government, and on March 14, 2001, in the case of damages (i) between the plaintiff and the non-party, the non-party was sentenced on November 9, 1999 to pay to the plaintiff 79,278,386 won as a result of the return of the provisional payment and 25% interest per annum from November 9, 199 to March 14, 2001. The non-party's appeal against the non-party was dismissed on June 29, 2001, and the judgment became final and conclusive.

B. On September 17, 2001, the Plaintiff was issued a seizure and collection order (hereinafter “instant collection order”) with respect to the amount of money until the amount reaches the above claim amount, 1/2 of the retirement allowance to be received by the Nonparty from the Defendant and the monthly salary paid by the Nonparty, the Nonparty and the third obligor, as the principal and interest of KRW 92,75,710 according to the above judgment, and the Nonparty and the third obligor pursuant to the above judgment. The above order was served on the Defendant on October 19, 2001.

2. Determination as to whether jurisdiction exists

ex officio, we examine the legitimacy of the instant lawsuit.

A. Summary of the plaintiff's assertion

With respect to a foreign judicial act, the plaintiff can exercise jurisdiction over the pertinent country with the Korean court. This case is a judicial act as a matter of a claim for benefits between the non-party and the defendant who is the third debtor. The plaintiff asserts that "Agreement between the Republic of Korea and the United States of America on Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America" (hereinafter "Korea-U.S. Administrative Agreement") and Article 23 (5) and (6) of the amended "Matters of Understanding Concerning Agreed Minutes related to the Korea-U.S. Administrative Agreement" (hereinafter "Matters of Agreement") and Article 23 (5) and (6) of the "Additional Agreed Matters Concerning Non-criminal Procedure related to Article 23 of the Korea-U.S. Administrative Agreement" (hereinafter "Matters of Agreement") provide for a civil case against the non-party's employees, such as the non-party, and thus, the defendant seek collection of the collection amount under the collection order in this

B. Determination

(i)the provisions of the Korea-U.S. Administrative Agreement;

[Korea-U.S. Administrative Agreement]

Article 23 Claims (Claims)

5.Claims (excluding claims under a contract and claims subject to paragraph 6 or 7 of this Article) arising from any commission or omission by or by a member or employee of the United States Armed Forces (including a national of the Republic of Korea or an employee ordinarily residing in the Republic of Korea) in the course of the performance of their official duties, or any other commission, omission or accident by which the United States Armed Forces legally responsible and which has inflicted damage on a third party other than the Government of the Republic of Korea, shall be dealt with in accordance with the following provisions of the Republic of

㈎ 청구는 대한민국의 군대의 행동으로부터 발생하는 청구권에 관한 대한민국의 법령에 따라 제기하고 심사하여 해결하거나 또는 재판한다(하략).

6.The claims against any member or employee of the United States Armed Forces (excluding any employee who is a national of the Republic of Korea or ordinarily resident in the Republic of Korea) arising from any unlawful act or omission in the Republic of Korea, not committed during the performance of his official duties, shall be dealt with in the following manner:

㈎ 대한민국 당국은, 피해자의 행동을 포함한 해당 사건에 관한 모든 사정을 고려하여, 공평하고 공정한 방법으로 청구를 심사하고 청구인에 대한 배상금을 사정하며, 그 사건에 관한 보고서를 작성한다.

㈏ 그 보고서는 합중국 관계 당국에 송부되며, 합중국 당국은 지체없이 보상금 지급의 제의 여부를 결정하고, 또한 제의를 하는 경우에는 그 금액을 결정한다.

㈐ 보상금 지급의 제의가 행하여진 경우, 청구인이 그 청구를 완전히 충족하는 것으로서 이를 수락하는 때에는 합중국 당국은 직접 지급하여야 하며 또한 그 결정 및 지급한 금액을 대한민국 당국에 통고한다.

㈑ 본 항의 규정은, 청구를 완전히 충족시키는 지급이 행하여지지 아니하는 한, 합중국 군대의 구성원 또는 고용원에 대한 소송을 수리할 대한민국 법원의 재판권에 영향을 미치는 것은 아니다.

9. ㈎ 합중국은, 대한민국 법원의 민사재판권에 관하여, 합중국 군대의 구성원 또는 고용원의 공무집행으로부터 발생하는 문제에 있어서 대한민국 안에서 그들에 대하여 행하여진 판결의 집행 절차에 관한 경우, 또는 청구를 완전히 충족시키는 지급을 한 후의 경우를 제외하고는, 합중국 군대의 구성원 또는 고용원에 대한 대한민국 법원의 재판권으로부터의 면제를 주장하여서는 아니 된다.

㈏ 합중국 군대가 사용하고 있는 시설과 구역 안에 대한민국 법률에 의거한 강제집행에 따를 사유동산(합중국 군대가 사용하고 있는 동산을 제외한다.)이 있을 때에는, 합중국 당국은, 대한민국 법원의 요청에 따라. 이러한 재산이 대한민국 당국에 인도되도록 그의 권한 내의 모든 원조를 제공한다.

[Supplementary Matters] (Entry into Force of April 2, 2001)

Article 23(5) and (6)

1. The Joint Committee shall establish procedures for the exercise of civil trial power by the court of the Republic of Korea;

【Matters Agreed】

4. ㈎ 합중국 군당국은 대한민국 관할법원이 행한 비형사재판 절차에서 선고된 판결, 결정, 명령 및 화해조서 등의 이행을 보장하기 위하여 그들 권한 내의 모든 원조를 제공하여야 한다.

㈑ 합중국 정부가 합중국 군대의 구성원, 군속 또는 고용인에게 지급할 금원은 합중국 법률이 허용하는 범위 내에서 압류 기타 대한민국 관할법원에 의하여 명하여진 강제집행의 대상이 될 수 있다(하략).

She review

㈎ 한미행정협정 적용 여부

According to the above facts, the plaintiff's claim against the non-party against the non-party is the plaintiff's claim for restitution of excessive amount of damages paid to the non-party who is the victim of the traffic accident, and it is clear that it occurred regardless of the non-party

Thus, since Article 23 (6) of the Korea-U.S. Administrative Agreement excludes claims against "the employee who is a citizen of the Republic of Korea," the claims against "the employee who is a citizen of the Republic of Korea," the above provision does not apply to the claims against the non-party who is a citizen of the Republic of Korea. Since Article 23 of the understanding that the procedure for exercising the claims under the above provision is more detailed and the provisions of the agreement cannot be applied to this case, the above provision cannot be applied to this case. Thus, the jurisdiction of the Korean court against the defendant cannot be recognized as the basis of the above provision of the Korea-U.S. Administrative Agreement (the collection order in this case also cannot be recognized if the collection order in this case is based on

㈏ 재판권 및 강제집행권 행사 가능 여부

Furthermore, according to the customary international law, the State's sovereign act is in principle exempted from the jurisdiction of another State. However, it cannot be said that it is today's international law or international practice to exempt from the jurisdiction of another State even the judicial act of a country. Therefore, barring special circumstances where a foreign judicial act conducted within the territory of the Republic of Korea belongs to sovereign activity or is closely related thereto, and the exercise of jurisdiction over it is likely to unfairly interfere with the foreign sovereign activity, it shall be deemed that the pertinent foreign country can exercise its jurisdiction as the defendant with respect to the foreign judicial act (see Supreme Court en banc Decision 97Da39216, Dec. 17, 1998).

① However, in this case, the Plaintiff is seeking the payment of the collection money to the Defendant based on the collection order issued by the Korean court, and it cannot be deemed that there exists any judicial relationship between the Plaintiff and the Defendant. ② Article 19(1) of the Draft State Exemption Treaty adopted by the United Nations International Law Commission in 1991 exceptionally permitted the compulsory measures against foreign property. In a case where the State explicitly consented to the compulsory measures against the State, the State has designated a specific property for the purpose other than non-commercial purposes or for the repayment of the claim that was subject to the jurisdiction of the Republic of Korea, where the State has already used or intended to use the government's property for non-commercial purposes, and the State has a relation to the claim that was subject to the lawsuit, or the agency or office that was subject to the lawsuit. ③ In this case, it seems that there are no grounds to recognize that the State does not have jurisdiction over the instant case, including the case where compulsory execution is permitted under the International Convention of the Republic of Korea and the United States.

3. Conclusion

Therefore, the lawsuit of this case is dismissed because it has no jurisdiction in the court of Korea, and it is unlawful, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal disputing it is dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Dong-dong (Presiding Judge)