[1] The meaning of "material relations" under Article 2 (1) of the Act on Private International Law and the standard for determining such "material relations"

[2] Whether the provisions under the jurisdiction of the Civil Procedure Act act as the most important standard for determining international jurisdiction (affirmative)

[3] Grounds for considering special jurisdiction in international jurisdiction, and the method of determining international jurisdiction where the defendant's property exists in the Republic of Korea at the time the plaintiff files a lawsuit, but has no direct relation to the plaintiff

[4] Standard for determining predictability in international jurisdiction, and in case where the defendant has a living basis in the Republic of Korea or acquires assets and conducts economic activities, whether predictability is acknowledged as to filing a lawsuit against the defendant in the Republic of Korea court (affirmative)

[5] Whether international jurisdiction concurrently exists (affirmative), and whether the jurisdiction of the court of the Republic of Korea can be readily denied on the sole basis of the fact that the court of another country is more convenient than the court of the Republic of Korea in terms of geography, language, and communication convenience (negative)

[6] In a case where Gap, a Chinese nationality, was a person who was engaged in a bond business in China and entered the Republic of Korea, Eul et al. was a couple of Chinese nationality, who was engaged in a real estate development business in China and prepared a residence in the Republic of Korea, and Gap brought a lawsuit seeking a return of loan lent to Eul et al. in the past China, the case affirming the judgment below which held that the Korean court has the international jurisdiction in light of all the circumstances and substantial relations with the Republic of Korea

[1] 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, the court has the international jurisdiction. In this case, in determining the existence or absence of substantial relation, the court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction.” Here, “actual relation” refers to the relation to the party or the case in dispute to the extent that it justifys the exercise of jurisdiction by a court of the Republic of Korea. The determination shall conform to reasonable principles consistent with the ideology of allocation of international jurisdiction, such as equity, propriety, and speedout and economy of the parties. Specifically, not only individual interests such as equity, convenience, and predictability of the parties, but also the appropriateness, prompt and efficient, and effectiveness of the judgment, and the interests of the court or the State, such as the appropriateness, effectiveness of the judgment, should also be taken into account. In such a case, a reasonable judgment on the existence of substantial relevance

[2] Article 2(2) of the Private International Act provides that “The court shall judge whether or not international jurisdiction exists, taking into account the provisions under the jurisdiction of domestic law, and take into account the specificity of international jurisdiction in light of the purport of the provision of paragraph (1),” and presents the provisions under the jurisdiction of domestic law in a specific standard or method of determining the substantive relationship as stipulated in paragraph (1). Therefore, the provisions under the jurisdiction of the Civil Procedure Act serve as the most important standard for determining international jurisdiction. However, since the provisions under the jurisdiction of the Republic of Korea concerning judicial matters established from a domestic point of view, the determination of international jurisdiction is also required to be made in accordance

The main text of Article 3 of the Civil Procedure Act provides, “The general forum of a person shall be determined by his/her address.” Therefore, the place on which the party’s living is the basis of the living, that is, the central place of his/her living relationship may be the most general and universal ground for the territorial jurisdiction.” Article 2 of the Civil Procedure Act provides, “The lawsuit shall be subject to the jurisdiction of the court in the place where the defendant’s general forum is located,” and allowing the plaintiff to file a lawsuit with the court in the domicile of the defendant is consistent with the equity of the parties in his/her jurisdiction.

[3] Considering the special jurisdiction in the international jurisdiction is to recognize the jurisdiction of the State substantially related to the disputed case. Article 11 of the Civil Procedure Act provides, “In the event a lawsuit concerning a property right is brought against a person who has no domicile in the Republic of Korea or a person whose domicile is unknown, a lawsuit may be brought to the court located in the place where the subject matter of the claim or the subject matter of the security or the subject matter of the security, or the subject matter of the seizure of the defendant’s property, may be brought to the court in the Republic of Korea at the time of the lawsuit by the plaintiff. If the defendant’s property exists in the Republic of Korea at the time of the lawsuit by the court in the Republic of Korea, the right of international jurisdiction may be immediately executed and the judgment may be invalidated. If the defendant’s property exists in the Republic of Korea, the right of international jurisdiction in the Republic of Korea may be acknowledged in terms of the party’s remedy or the effectiveness of the judgment. However, if the plaintiff’s property is located in the Republic of Korea,

[4] Determination of predictability ought to be made on the basis of whether the defendant could have reasonably predicted the filing of a lawsuit at the court in the jurisdiction of the jurisdiction because of considerable relations between the defendant and the jurisdiction. When the defendant has a living basis in the Republic of Korea or acquires assets and conducts economic activities, he/she may easily anticipate that a lawsuit against the defendant regarding the property is instituted at the court of the

[5] International jurisdiction is not exclusive jurisdiction, but it may exist concurrently. The jurisdiction of the Republic of Korea court shall not be readily denied on the sole basis of the fact that courts of other countries are more convenient than the Republic of Korea court in terms of geography, language, and communication convenience.

[6] The case affirming the judgment below that, in case where Gap et al. filed a lawsuit with the court of the Republic of Korea seeking the return of loans that Eul et al. used to engage in a bond business in China with the nationality of the People's Republic of Korea (hereinafter "China"), who entered the Republic of Korea and entered the Republic of Korea; Eul et al. used to operate a real estate development project in China with the married couple of Chinese nationality; Eul et al. purchased and own real estate in the Republic of Korea and used the real estate acquired while raising his children in the Republic of Korea with the living basis at the time of the aforementioned lawsuit; and Gap et al. actually resided in the real estate acquired while raising his children in the Republic of Korea with the living basis at the time of the above lawsuit, it is difficult to view that Gap et al and Eul established a substantial living basis in the Republic of Korea at the time of the above lawsuit; since Eul et al. acquired the foundation for living in the Republic of Korea; since Eul et al. owned real estate and property in the Republic of Korea, it can be viewed that Gap's legal relationship with other Chinese court's domestic jurisdiction litigation.

[1] Article 2(1) of the Private International Act / [2] Article 2 of the Private International Act, Articles 2 and 3 of the Civil Procedure Act / [3] Article 2 of the Private International Act, Article 11 of the Civil Procedure Act / [4] Article 2(1) of the Private International Act / [5] Article 2(1) of the Private International Act

[1] Supreme Court Decision 2002Da59788 Decided January 27, 2005 (Gong2005Sang, 294) Supreme Court Decision 2006Da71908, 71915 Decided May 29, 2008

Plaintiff (name omitted) (Law Firm Gyeong, Attorney Lee Young-soo, Counsel for the plaintiff-appellant)

Defendant 1 (English name omitted) and one other (Attorney Go Chang-sik, Counsel for the defendant-appellant)

Gwangju High Court ( Jeju) Decision 2014Na1166 decided July 6, 2016

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. misunderstanding of legal principles as to international jurisdiction (Ground of appeal No. 1)

A. Standard for determining international jurisdiction

(1) 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, the court has the international jurisdiction. In this case, the court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction in determining the existence or absence of substantial relation.” Here, “actual relation” refers to the relation to the party or the case in dispute to the extent that it justify the exercise of jurisdiction by a court of the Republic of Korea. The court shall comply with reasonable principles consistent with the ideology of allocation of international jurisdiction, such as equity, propriety, speediness, economy, etc. of the party, as well as personal interests, such as equity, convenience, and predictability of the party, and the appropriateness, speed, efficiency, effectiveness, and effectiveness of the judgment. Specifically, the court or the State’s interest, such as the court or the individual case in need of protection of any interest among various interests of international jurisdiction, shall be determined by reasonably determining the existence of substantial relevance (see, e.g., Supreme Court Decisions 2002Da59788, Jan. 27, 2005). 197

Article 2(2) of the Private International Act provides that “The court shall judge the existence of international jurisdiction, taking into account the provisions of domestic law’s jurisdiction, and shall consider the specificity of international jurisdiction in light of the purport of the provision of paragraph(1), and shall present the provisions of domestic law’s jurisdiction in a specific standard or method of determining the substantive relationship as prescribed in paragraph(1). Therefore, the provisions of the Civil Procedure Act’s jurisdiction serve as the most important standard for determining international jurisdiction. However, given that the provisions of this jurisdiction are related to the judicial matters established from a domestic point of view, it is also necessary to revise and apply to the determination of international jurisdiction in line with

(2) The main text of Article 3 of the Civil Procedure Act provides, “The general forum of a person shall be determined by his/her address.” Therefore, the place on which the party’s living is the basis of the right of territorial jurisdiction may be the most general and universal ground for the right of territorial jurisdiction.” Article 2 of the Civil Procedure Act provides, “The lawsuit shall be subject to the jurisdiction of the court at which the defendant’s general forum is located.” However, allowing the plaintiff to bring a lawsuit to the court at which the defendant’s domicile is his/her domicile is consistent with the equity of the parties in his/her jurisdiction. In international jurisdiction,

Considering the special jurisdiction in international jurisdiction is to recognize the jurisdiction of the State substantially related to the disputed case. Article 11 of the Civil Procedure Act provides, “In the event a lawsuit concerning a property right is brought against a person who has no domicile in the Republic of Korea or against a person whose domicile is unknown, a lawsuit may be brought to the court located in the place where the subject matter of the claim or the object of the security, or the subject matter of the security, may be attached.” If the defendant’s property is located in the Republic of Korea at the time of filing a lawsuit against the defendant, if the lawsuit against the defendant is brought against the court in the Republic of Korea, and the judgment is rendered in favor of the defendant, the right to international jurisdiction of the court in the Republic of Korea may be acknowledged in terms of the right to remedy or the effectiveness of the judgment. If the defendant’s property exists in the Republic of Korea, the recognition of the right to international jurisdiction may be remarkably unfavorable to the defendant. Accordingly, if the plaintiff’s property is not directly related to the defendant’s property,

Furthermore, predictability should be determined on the basis of whether the defendant could have reasonably predicted the filing of a lawsuit at the court in the jurisdiction of the jurisdiction of the jurisdiction because of considerable relations between the defendant and the jurisdiction. If the defendant has a living basis in the Republic of Korea or acquires assets and conducts economic activities, he/she may easily predict that the lawsuit against the defendant regarding the property is instituted at the Korean court

(3) International jurisdiction is not exclusive jurisdiction, but it may exist concurrently. The jurisdiction of the Republic of Korea court shall not be readily denied on the sole basis of the fact that courts of other countries are more convenient than the Republic of Korea court in terms of geography, language, and communication convenience.

B. Facts

The facts found by the court below are as follows.

(1) The Plaintiff, with the nationality of the People's Republic of China (hereinafter "China"), entered the Republic of Korea as a person who resided in ○○○ City in China and engaged in a bond business around 2014. The Defendants were married who resided in △△△△△ City in China with Chinese nationality and operated a real estate development project from March 2013 to June 2013, and frequently entered the Republic of Korea and China, and around that time, entered Jeju Special Self-Governing Province in the Republic of Korea (hereinafter "Do").

(2) On March 12, 2013, Defendant 1 purchased ( Address 1 omitted) and four parcels of land, including the address 1 omitted, and registered the ownership transfer on April 8, 2013. On May 21, 2013, Defendant 1 registered the ownership transfer of a DNA 43.0D vehicle. On May 28, 2013, Defendant 1 purchased a lot of land 1,584 square meters and one building on its ground and registered the ownership transfer. Defendant 2 had deposit claims in the National Bank and New Bank Co.,, Ltd.

(3) Defendant 1 continued to reside and live in Jeju Island from June 12, 2013 to the time the instant lawsuit was filed, and had his/her child enter and rear his/her child to the △△ International School Mackbus. Defendant 2 also resided in the Republic of Korea for a considerable period of time, coming from the Republic of Korea, and living with his/her family, and left China on July 23, 2013, and was prohibited from departing from China.

(4) On April 4, 2013, the Defendants acquired a visa from the tourism department (B-2) for one year of validity on April 15, 2013, but applied for a change of resident status on the ground that they purchased real estate subject to investment under the investment immigration system on April 15, 2013, and acquired a visa with their children for two years of validity (F-2). Unless there are special circumstances, the validity period is extended by three years after the expiration of the validity period of two years, and the permanent residence is acquired on the fifth anniversary of the date when they maintained the eligibility of investors by holding the investment property until then.

(5) The Plaintiff asserted that the Defendants borrowed a total of 5,00,000 bills from the Plaintiff from May 24, 2009 to November 25, 201, while running a business in China, and received a decision of provisional seizure as to real estate, vehicles, claims, etc. as described in the foregoing paragraph (2), and filed the instant lawsuit with the Jeju District Court of Korea on January 18, 2014.

(6) As seen above with respect to Defendant 1’s property, the above Defendant’s visa rating was adjusted downward, and Defendant 2’s visa was also reduced in its validity period. Defendant 1 left the Republic of Korea on February 2015 after Defendant 2 was prohibited from departure in China, and was investigated in the criminal case in China, and was released as bail. The Defendants are currently residing in China.

C. Appropriateness of the lower judgment

(1) The lower court acknowledged the international jurisdiction of the Republic of Korea court regarding the instant case on the following grounds.

(A) At the time of filing the instant lawsuit, the Defendants purchased real estate and vehicles located in the Republic of Korea, and owned and used them. At the time of filing the instant lawsuit, they actually resided in the real estate acquired by raising their children based on their living base in the Republic of Korea, and entered schools in the Republic of Korea, and both the Defendants and their children acquired the visa, which is the premise for acquiring the sovereignty of the Republic of Korea. At the time, the reason why the Defendants entered the Republic of Korea is attributable to the civil and criminal cases committed in China at the time of residing in China, which makes it difficult to reside in the Republic of Korea more difficult to avoid the dispute. This is because the Defendants are currently residing in China, but they have to return to China inevitably in connection with the civil and criminal cases. The Plaintiff also entered the Republic of Korea at the time of filing the instant lawsuit, and has a plan to conduct business activities in the Republic of Korea for a considerable period of time. Comprehensively taking account of these circumstances, the Plaintiff

(B) It is difficult to deem that the Defendants left China to avoid the dispute and acquired property based on the basis of a living in the Republic of Korea, and thus, the Plaintiff could not have anticipated to file the instant lawsuit against them with the Korean court. In the situation where the Defendants owned property, such as real estate and a vehicle, in the Republic of Korea and the Plaintiff provisionally seized such property, the Plaintiff may file a lawsuit with the

(C) The Plaintiff, a Chinese national, clearly expresses his/her intent to have the Defendants, a Chinese national, tried in the Republic of Korea court. The Defendants also appointed a legal representative and responded to the case. The substantive pleadings and hearings on the merits of the instant case have been conducted in the Korean court for a considerable period of time. The facts requiring proof in the instant case can be proved by documentary evidence, such as most of the contract or account transfer records, and it is difficult to deem it necessary to conduct on-site investigations in China, and the filing of a lawsuit in the Republic of Korea is not considerably disadvantageous to the Defendants. On the other hand, denying the international jurisdiction of the Korean court in the instant case and re-examine it by the Chinese court would seriously violate the

(D) Even if the governing law of the legal relationship of the instant case is the Chinese law, international jurisdiction and governing law are governed by different ideas, so such circumstance alone cannot readily deny the substantial relationship between the instant lawsuit and the Korean court.

(2) The lower court’s determination is justifiable in light of the foregoing legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on international jurisdiction, contrary to what is alleged in the grounds of appeal

2. As to the violation of the rules of evidence and the misapprehension of the legal principle on the appropriation of claim (ground of appeal No. 2-4)

A. The lower judgment

The lower court determined as follows with respect to the Plaintiff’s cause of claim.

(1) Since the legal relationship of this case has foreign elements, the governing law should be determined in accordance with the Private International Act. According to Article 26(2)2 of the Private International Act, the Chinese law in which the Plaintiff’s habitual residence and place of business are located at the time of entering into the instant monetary loan contract shall be the governing law.

(2) In the course of operating a lending company in China, the Plaintiff loaned the Defendants’ total amount of KRW 5,00,000 to 2% of the due date and interest rate on November 25, 201, using not only his/her own financial account but also his/her relative financial account. Therefore, barring any special circumstance, the Defendants are jointly and severally liable to pay the said loan and the agreed interest or delay damages to the Plaintiff in accordance with the relevant Chinese law.

(3) The Defendants may recognize the fact that the Defendants paid a total of 14,509,120 bills to the Plaintiff. However, this appears to have been paid for the repayment of the borrowed money pursuant to a separate financial transaction. In addition, there is insufficient evidence to acknowledge the fact that the Defendants paid the Plaintiff. Therefore, it cannot be deemed that the Defendants paid the borrowed money to the Plaintiff.

B. Appropriateness of the lower judgment

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the determination of evidence and the appropriation of performance, or by exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

The Defendants’ appeals are dismissed in entirety 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 on the bench.

Justices Lee Dong-won (Presiding Justice)