[1] Matters to be considered in determining international jurisdiction

[2] In a case where Gap of the nationality of the Republic of Korea and Eul of the Spanish nationality of the Republic of Korea were married in the Republic of Korea, and Gap was married to the Republic of Korea and gave birth to her children Byung, both of which were returned to the Republic of Korea, and both of which were returned to the Spain, and thereafter Gap went back to the Republic of Korea, and filed a divorce lawsuit against Eul, the case holding that Gap's lawsuit recognized the international jurisdiction of the Republic of Korea court on the ground that there was a substantial relation with the Republic of Korea

[1] Article 2(1) of the Act on Private International Law provides that "where a party or a case in dispute is substantially related to the Republic of Korea, the court shall have 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." In addition, Article 2(2) provides that "the court shall consider the provisions of the domestic law and consider the existence or absence of the international jurisdiction, and shall fully consider the special nature of the international jurisdiction in light of the purport of the provision of paragraph (1)." Thus, international jurisdiction shall be determined in accordance with the basic ideology of ensuring equity between the parties, such as equity, convenience, and predictability, as well as personal interests, such as the appropriateness, speediness, efficiency, and effectiveness of the judgment, as well as the interests of the court or the state, such as the appropriateness, effectiveness, etc. of the judgment, shall be considered together with the individual interests of the parties to the lawsuit. Whether there is a need to protect any of these diverse interests shall be determined reasonably by taking into account the objective criteria for individual cases,

[2] The case holding that in a case where Gap, who has the nationality of the Republic of Korea, and Eul who had the nationality of the Republic of Korea, married in the Republic of Korea, and resided in the Republic of Korea, and Eul returned to the Republic of Korea after several months after Gap gave birth of her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her and her her her her her her her her her her her her her her her her her.

[1] Article 2(1) and (2) of the Private International Act / [2] Article 2(1) and (2) of the Private International Act

[1] Supreme Court Decision 2010Da18355 Decided July 15, 2010 (Gong2010Ha, 1578), Supreme Court Decision 2009Da22549 Decided May 24, 2012 (Gong2012Ha, 1084)

Plaintiff (Attorney Park Byung-hee, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jong-hwan et al., Counsel for the defendant-appellant)

Principal of the case

Seoul Family Court Decision 2011Dhap9242 decided November 1, 2012

January 18, 2013

1. Revocation of the first instance judgment.

2. The case is remanded to the Seoul Family Court.

1. Purport of claim

The plaintiff is divorced with the defendant. The defendant shall pay to the plaintiff 10 million won as consolation money and 20% interest per annum from the day after the delivery of the complaint of this case to the day of full payment. The defendant shall pay to the plaintiff 80 million won as division of property and 5% interest per annum from the day after the judgment became final and conclusive to the day of full payment. The plaintiff shall be designated as a person with parental authority and guardian for the principal of this case. The defendant shall pay to the plaintiff 2.5 million interest per annum from the delivery date of the complaint of this case to the day of full payment. The defendant shall pay to the plaintiff 2.5 million won per annum

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The nationality, etc. of the plaintiff and the defendant

1) The Plaintiff has the nationality of the Republic of Korea and permanent residence in Spain, and the Defendant has the Spain nationality, and the principal of the case has both the Republic of Korea and Spain nationality.

2) The Defendant, who is a parent of the Republic of Korea’s nationality, has moved to a Spain and completed his/her study with his/her parents around one death, and operates his/her business in Spain.

3) On August 15, 2006, the Plaintiff entered marriage in the Defendant and Daegu of the Republic of Korea, completed the marriage report on August 8, 2007, and delivered the principal of the case on December 29, 2007.

(b) Status of residence of the plaintiff and the defendant;

1) After completing marriage, the Plaintiff and the Defendant lived in the recruitment of the Plaintiff in the Republic of Korea, and lived in the recruitment of the Defendant in Spain from September 2006.

2) On October 2006, the Plaintiff returned to the Republic of Korea to a pregnant woman for the purpose of performing a booming surgery. The Plaintiff became aware of the fact that he was pregnant the principal of the instant case while receiving medical treatment after completing the surgery.

3) The Plaintiff followed the Spain and decided to reside in the Republic of Korea until he gives birth to the principal of the case. During that period, the Defendant left the Republic of Korea and the Spain.

4) On December 29, 2007, the Plaintiff gave birth to the principal of the instant case. The time was delayed when the principal of the instant case had been in operation twice or more as the principal of the instant case had been in Spain, and the Plaintiff returned to Spain along with the principal of the instant case on March 14, 2009.

5) From that time, the Plaintiff and the Defendant lived with the instant principal in Spanish (VGO). While disputing the issue that the Defendant committed an unlawful act with a female in Spanish, the Plaintiff purchased the instant principal’s right to return home on August 31, 201 and returned to the Republic of Korea with the Defendant’s permission on June 29, 201, under the pretext that the Plaintiff would send it to the principal of the case and the Republic of Korea.

6) On January 9, 2012, the lawsuit in this case was pending, the Plaintiff was registered as a resident with the principal in the case’s “Yong-gu, Daegu-dong ( Address 1 omitted),” which is the Non-Party’s residence of the Non-Party’s Nonparty, located in the Republic of Korea.” On January 9, 2012, the Plaintiff was appointed as the “Yong-gu, Yongsan-gu, Yongsan-gu ( Address 2 omitted) 2.

7) The Plaintiff resided with the Plaintiff’s mother in his residence and sent the case principal to a kindergarten near the residence.

C. Filing a divorce lawsuit

1) On August 25, 2011, the Plaintiff filed the instant lawsuit with the Seoul Family Court. On September 15, 2011, the Defendant thereafter filed a lawsuit against the Plaintiff, including divorce, with the Spain (VIGO) court.

2) On August 25, 201, the Defendant holds shares of AB sports in the Republic of Korea. On August 25, 201, the Plaintiff filed an application for provisional attachment on the shares owned by the Defendant with the Seoul Family Court (Seoul Family Court 201 businesshap87), claiming consolation money and a claim for division of property equivalent to KRW 900 million, as a preserved right. The Seoul Family Court ordered the Plaintiff to provide a security equivalent to KRW 360 million, and subsequently accepted the Plaintiff’s application for provisional attachment on September 7, 2011.

3) On February 15, 2012, the Spanish court rendered a prior disposition (temporary measure) stating that “The rearing and protection of the principal of the case shall be delegated to the Plaintiff, but the Defendant shall pay the Plaintiff 500 percentage per month in the name of the principal of the case.”

4) Although the Plaintiff filed an application for violation of jurisdiction with the Spanish court, the Spanish court rendered a judgment dismissing the Plaintiff’s application on April 30, 2012 on the ground that the Defendant’s application for violation of jurisdiction was not made within the statutory period.

[Based on the recognition] The evidence Nos. 1-5, Nos. 1-3, 7, and 9 (including each number), the family investigation report, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The Defendant extremely maltreated the Plaintiff and committed an unlawful act with a Spain female while neglecting his/her home. Such error led to the failure of the marriage between the Plaintiff and the Defendant.

2) The above act of the Defendant constitutes grounds for divorce under Article 840 subparag. 1, 2, 4, and 6 of the Civil Act, and thus, the Plaintiff claims for divorce, consolation money, division of property, designation of a person with parental authority over the principal of the case and child support, as stated in the purport of the claim.

B. Defendant’s assertion

1) The Defendant’s domicile is Spanish, and the Defendant’s habitual residence and the last common residence are also in Spanish.

2) As to the lawsuit brought by the Defendant against the Plaintiff in the Spanish court, the Spanish court rendered a judgment that jurisdiction exists, and the Plaintiff also actively responded to the lawsuit brought by the Defendant in the Spanish court.

3) Therefore, the instant lawsuit is unlawful as it was filed by mistake in a court of the Republic of Korea without international jurisdiction.

3. Judgment on international jurisdiction

A. Relevant legal principles

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 shall have 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.” Meanwhile, Article 2(2) provides, “the court shall consider the provisions of the domestic law in light of the nature of the international jurisdiction in light of the purport of the provision of paragraph (1).” Thus, international jurisdiction shall be determined in accordance with the basic ideology of ensuring fair, reasonable, reasonable, prompt, and economy between the parties, as well as personal interests, such as equity, convenience, and predictability of the parties to the lawsuit, and the appropriateness, prompt, efficient, and effectiveness of the judgment, as well as the interests of the court or the state, such as the appropriateness, effectiveness, etc. of the judgment, shall be determined reasonably by taking into account the objective relationship between the suspension of law and the parties and the actual relationship between the case in dispute (see, e.g., Supreme Court Decision 2010Da54254259, Jul. 25, 2015, 20105).

B. Summary of the judgment of the first instance court

The first instance court, based on the following circumstances, determined that the instant lawsuit was unlawful as it was filed with a court of the Republic of Korea without international jurisdiction.

1) According to Article 13 of the Family Litigation Act, barring any special circumstance, family litigation has jurisdiction over the place where the defendant's general forum is located, barring special circumstances. Although the above provision is a provision on domestic jurisdiction, if it is inferredly applied, it is reasonable to view that the defendant's domicile in this case is Spanish and thus, has jurisdiction over

2) The Defendant’s nationality is Spanish, and the Plaintiff and the Defendant were scheduled to reside in Spanish. Although the time of Spanish residence was delayed due to the Plaintiff’s childbirth, etc., the time of residence in Spanish has been maintained in Spanish from March 14, 2009 to June 29, 201, before the Plaintiff returned from March 14, 2009 on the grounds of marriage dissolution, while the Plaintiff and the Defendant did not have a communal living due to marriage in the Republic of Korea, and thus are more related to the marital life of Spain, Spain and the Defendant than the Republic of Korea.

3) The Defendant had been residing in Spanish for a long time, and the Plaintiff has been living in Spanish for about two years prior to the failure of the marriage, and there are most evidence methods concerning whether or not the failure of the marriage has occurred and the cause thereof, support fees and child support are in Spanish.

4) The Plaintiff is an attorney-at-law in a lawsuit such as divorce filed by the Defendant against the Plaintiff in Spanish and is responding to the appointment of the Plaintiff.

C. The judgment of this Court

1) However, in light of the aforementioned legal principles, it is difficult to accept the judgment of the first instance court for the following reasons.

A) International jurisdiction is not exclusive jurisdiction, but it may exist concurrently. Thus, it is difficult to readily deny the jurisdiction of the court of the Republic of Korea on the sole basis of the fact that the Spanish court is more convenient for the hearing than the Republic of Korea court in terms of the convenience of collecting evidence, and the fact that the plaintiff clearly expresses his intention to be tried by the Korean court is claiming a trial shall also be sufficiently considered.

B) In the instant case, the Plaintiff and the principal of the instant case had the nationality of the Republic of Korea, and the principal of the instant case was born in the Republic of Korea and was enrolled in a kindergarten located in the Republic of Korea, and at the time when the Plaintiff and the Defendant reside in the Republic of Korea, it should be deemed that the Defendant could have predicted that the divorce lawsuit may be brought

C) Although it is recognized that the final habitual residence of the Plaintiff and the Defendant resided together with the Spain, the Plaintiff was registered as a resident at the office of the Plaintiff’s father located in the Republic of Korea along with the case principal during the marriage period, and was living in the office of the Plaintiff’s father for a considerable period of time during the real marriage. From June 29, 2011 to June 29, 201, the Plaintiff’s habitual residence is being raised along with the Plaintiff’s mother and the Plaintiff’s mother and living in the Republic of Korea, and thus the Plaintiff’s habitual residence

D) Articles 39 and 37 of the Private International Act provide, unlike marriage, special provisions that “if one of the married couple is a national of the Republic of Korea who has a habitual residence in the Republic of Korea, divorce shall be governed by the law of the Republic of Korea.” Thus, there is a substantial need to recognize the jurisdiction in the court of the Republic of Korea for the benefit of the plaintiff who is a national of the Republic of Korea. Furthermore, the defendant’s agent voluntarily states that “ differently from the Korean court, the Spain court does not recognize the claim for consolation money to the principal responsible person of the failure.” Thus, allowing the plaintiff who is a national of the Republic of Korea to be tried only by the Spain court may bring

E) According to the reasoning of the judgment of the first instance, if the Defendant did not respond to a divorce lawsuit against the Plaintiff at a Korean court, it would result in an unreasonable outcome that the Korean court does not have jurisdiction over the Plaintiff.

F) The Plaintiff’s claim of this case includes “The Plaintiff’s request for the designation of a person with parental authority and a custodian for the principal of this case who has the nationality of the Republic of Korea, resides in the Republic of Korea, and is brought up by a national of the Republic of Korea.” However, the fact that matters concerning the designation of a person with parental authority and custodian for the principal of this case may not be within the jurisdiction of the Republic of Korea

G) Since the property owned by the Defendant exists in the Republic of Korea and the Plaintiff is also subject to provisional seizure against the above property, it is beneficial to bring a divorce lawsuit against the Republic of Korea court in order to effectively enforce the claim for division of property.

H) Even if the governing law of the instant divorce case is a Spanish law, the governing law is appropriate to resolve the dispute by the order of a country’s substantive law, whereas the international jurisdiction is governed by the different ideology of which country’s courts are able to achieve the propriety and fairness of the trial, and thus, the international jurisdiction cannot be determined only in accordance with the governing law.

I) International jurisdiction is a matter concerning the scope of sovereign rights of the State, so it is not reasonable to have an attempt to unfairly expand the jurisdiction of its country with a formal reason. However, it is also necessary to give careful attention to the waiver of international jurisdiction by itself on the grounds of an incidental circumstance.

2) If so, it is sufficient to view the Plaintiff’s lawsuit of this case as having a substantial relation with the Republic of Korea, apart from the fact that the Defendant’s jurisdiction over divorce lawsuit filed with the Spanish High Court, etc. However, the first instance court determined otherwise and dismissed the lawsuit of this case. Thus, the judgment of the first instance court is erroneous in the misapprehension of legal principles as to substantial relation in recognition of international jurisdiction, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the first instance court shall be revoked, and the case shall be remanded to the first instance court for a new trial and determination pursuant to the main sentence of Article 418 of the Civil Procedure Act. It is so decided as per Disposition.

Judges Lee Il-man (Presiding Judge)