[1] Criteria for determining the existence of international jurisdiction

[2] In a case where the surviving family members of a Chinese crew who died in the fall accident of the Chinese aircraft near the Kimhae Airport in 2002 filed a claim for damages against the Chinese airline in the Republic of Korea, the case affirming the international jurisdiction of the Korean court

[1] In determining the existence of international jurisdiction, the court shall determine international jurisdiction in accordance with the basic ideology of ensuring fairness between the parties, the propriety, speediness, and economy of the trial. Specifically, not only individual interests such as equity, convenience, and predictability of the parties to the lawsuit, but also interests of the court or the state, such as appropriateness, speediness, efficiency, and effectiveness of the judgment, etc. of the court or the state. Whether to protect any of these diverse interests should be reasonably determined by taking into account the objective criteria for the substantial relationship between the court and the parties to the individual case, and the substantial relationship between the case in dispute and the suspension of law.

[2] In a case where the surviving family members of Chinese crew who died in the fall of the Chinese aircraft near the Kimhae Airport in 2002 filed a claim for damages against the Chinese airline in the Republic of Korea, the case affirming international jurisdiction of the Korean court on the ground that it is sufficient to view the above lawsuit as having substantial relations with the Republic of Korea in light of the territorial jurisdiction under the Civil Procedure Act, the litigation party's personal interest, the court's interest, equity with other damaged family members, etc.

[1] Article 2 of the Private International Act / [2] Article 2 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 1 and one other (Law Firm Cheongn, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

China International Aviation Corporation (Law Firm, Kim & Lee LLC, Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2009Na10959 decided January 28, 2010

The judgment of the court of first instance is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

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.” In addition, Article 2(2) provides, “the court shall judge the existence or absence of international jurisdiction, taking into account the provisions of the domestic law, and shall fully consider the special nature of international jurisdiction in light of the purport of the provision of paragraph(1).” Thus, the international jurisdiction shall be determined in accordance with the basic ideology of ensuring the fairness, propriety, speed 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, speed and efficiency of the judgment, and effectiveness of the judgment. Specifically, the issue of which interest among these various interests needs to be protected shall be determined by taking into account the objective criteria for the suspension of the law and substantial relation between the parties to the case and the case in dispute (see Supreme Court Decisions 2005Da7819758, Jan. 27, 200879, 2008.

According to the reasoning of the judgment below and the judgment of the first instance as cited by the court below, the defendant company was established in the People's Republic of China (hereinafter referred to as "China"), and operated the international air transportation business, etc. within the Republic of Korea, and the non-party (China) entered into an employment contract with the defendant company around April 1, 1997, and worked in the defendant company since that time. The plaintiffs are the parents of the above non-party. The aircraft of this case began with Vietnam on April 15, 2002 and filed a lawsuit against the non-party 1 on April 15, 2002 about the damages claim against the non-party 2, including the non-party 1, the court of first instance, after which the non-party 1 was declared liable for damages of the non-party 1, 200-party 1, 200-party 1, the court of appeal was reversed by the non-party 1,60-party 1, 200-party 1, 16 meters of the flight route.

The first instance court, based on these factual basis, determined that the plaintiffs' lawsuit of this case was unlawful because it was filed with a court of the Republic of Korea without international jurisdiction, and the lower court upheld the first instance judgment.

However, in light of the above legal principles, it is difficult to accept the judgment of the court below and the first instance court for the following reasons.

First, since the plaintiffs' claim causes for damages due to the defendant company's tort or non-performance of contractual obligation, it is reasonable to view that there exists territorial jurisdiction under the Civil Procedure Act in the court of the Republic of Korea where the place of tort (the place of the accident and the result of the accident in this case or the place of arrival of the aircraft in this case) and the place of business of the defendant company are located. However, in determining whether the party or the disputed case is substantially related to the Republic of Korea, it cannot be denied that the existence of territorial jurisdiction under the Civil Procedure

Second, since international jurisdiction is not exclusive jurisdiction, it is more convenient for the Chinese court to readily deny the jurisdiction of the Korean court on the sole basis of the Chinese court to more convenient for the defendant company in terms of the geographical, verbal, and communication convenience, and the plaintiff is claiming a trial by clearly expressing his intent to have a trial in the Korean court. In addition, as long as the defendant company exists in this case and the defendant company's aircraft is in the Republic of Korea and is acquired by profit-making in the Republic of Korea, it is reasonable for the defendant company to bound the jurisdiction of the Korean court in the event the defendant company's aircraft falls in the territory of the Republic of Korea in the course of conducting its business activities, and the defendant company can sufficiently predict the fact that the defendant company can file a lawsuit against the defendant company at the Korean court in such case. Accordingly, from the perspective of personal interest, the jurisdiction of the Korean court is excluded.

Third, in general, the interest of jurisdiction is recognized to the court of the country in which an aircraft accident occurred as convenient to examine the case and examine the evidence. However, it is difficult to say that the situation in which the parties in the related case have already acknowledged the liability itself in the related case merely because it is an friendly circumstance that depends on the time of filing a lawsuit. Furthermore, it is reasonable to change the jurisdiction depending on such friendly circumstance. Furthermore, it is reasonable to resolve a dispute in accordance with the substantive law and order of a country. On the other hand, international jurisdiction is determined by a court of a country as it is governed by a different ideology that makes it appropriate and fair to a trial in a court of a country, and thus, it cannot be determined only according to the governing law. Furthermore, in light of the fact that the governing law applicable to this case is China law, even if it is applicable to a legal relationship with a foreign element today, it is insufficient to view that there is a possibility that a business office of a defendant company in the Republic of Korea is located in the Republic of Korea, or that there is a possibility that the plaintiffs will have its property in this case.

Fourth, international jurisdiction is a matter concerning the scope of sovereign rights, so it is not reasonable to unfairly expand its jurisdiction for the formal reasons, but it is also necessary to pay attention to the waiver of international jurisdiction by itself based on the secondary circumstances. And in the claim for damages of a person who has been on board the same aircraft and has suffered the same accident, if international jurisdiction is different solely on the ground that the nationality of the passenger and the basis for boarding are different, it would be difficult to understand in equity.

Therefore, although the plaintiffs' lawsuit of this case is sufficient to be deemed to have a substantial relation with the Republic of Korea, the court of first instance judged otherwise and dismissed the lawsuit of this case, and the court below erred by misapprehending the legal principles on substantial relations in recognition of international jurisdiction, and thereby affecting the conclusion of the judgment.

Therefore, the judgment of the court below shall be reversed, and this case is sufficient for the Supreme Court to directly render a judgment, and thus, the judgment of the court of first instance 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 by the assent

Justices Shin Young-chul (Presiding Justice)