Summary
This chapter separates the requirement of statutory service or appearance from the public policy requirement as to substance and procedure, and does not convert mere disadvantage into a violation of public policy.
2.1The Standard by Which the Path Opens
Whether there was an opportunity to mount a defense is a different question from whether the judgment is to one's liking. The preceding section proceeded on the premise that a foreign final and conclusive judgment must satisfy all the requirements for recognition, including international jurisdiction, the right of defense, public policy, and reciprocity. Creditor A seeks to enforce a foreign judgment document against the property of debtor B, who is located in the domestic territory. In this scene, before asking how far A's document will be accepted domestically, one must first determine whether the proceedings that took place abroad created the room for defense that Korean law requires. How are defects in service and the content of the judgment handled at the recognition stage? Put differently, what is the standard for opening the channel of this remedy?
The provision that answers this question is Civil Procedure Act Article 217 paragraph (1). Subparagraph 2, a requirement close to that paragraph's second element, requires that "the losing defendant was served, by a lawful method, with a complaint or a document equivalent thereto and a notice or order of a date, allowing sufficient time for the preparation of a defense (excluding cases of service by publication or any similar service), or, even if not served, appeared in the lawsuit." This text takes the "losing defendant" as its subject and sets down lawful service of "a complaint or a document equivalent thereto" and "a notice or order of a date," together with sufficient time for the preparation of a defense, as its requirements. A method such as service by publication, which cannot directly create an opportunity for a defense, is not counted as service, and even where there was no service, if the defendant actually appeared in the lawsuit, the opportunity to respond is deemed to have existed on that account.
Comparing this requirement with subparagraph 3 makes clear what must be separated from what at the recognition stage. Subparagraph 3 requires that "in light of the content of such final and conclusive judgment, etc. and the litigation proceedings, the recognition of such final and conclusive judgment, etc. is not contrary to the good morals and other public order of the Republic of Korea," so the object of that inquiry is whether the content of the judgment and the proceedings are contrary to Korean public policy. What subparagraph 2 asks, by contrast, is whether the foreign proceedings gave the defendant an opportunity to respond; this is called the "right of defense at the recognition stage," that is, the opportunity to respond that must be secured through formal service and appearance. The author separates the two, treating defects in the right of defense revealed in service as an issue under subparagraph 2 and referring the question whether the content of the judgment is contrary to Korean public order to subparagraph 3. Accordingly, the mere circumstance that the outcome of the judgment is unfavorable to the defendant cannot establish a violation of public policy under subparagraph 3.
The counterargument this distinction targets is clear: that the outward form of an appearance may conceal the actual absence of an opportunity for a defense. Even if a record remains showing that the defendant appeared before the foreign court, if those proceedings were conducted in an unfamiliar language and by unfamiliar methods and there was no time to understand or respond to the necessary documents in due course, the opportunity to respond may in fact have been hollow. Moreover, there even arises the concern that, if foreign determinations are respected as they stand, the right of defense and public policy of domestic parties will not be sufficiently protected. Yet the answer the author has fixed is clear. A violation of public policy cannot be established merely because foreign proceedings are unfamiliar. Subparagraph 2 addresses that concern through concrete requirements as to the method of service and the time allowed, and the reasons for shifting the analysis to subparagraph 3 are limited to cases in which the content or proceedings are contrary to Korean good morals or public order.
The analysis returns to the synthetic scene. What creditor A has brought is a foreign judgment document, and what he aims at is the property of debtor B, who is located in the domestic territory. On this scene alone, it remains undetermined how the foreign court served B with the complaint and the notice of a date, whether B appeared in that lawsuit, and whether the content and proceedings of that judgment are contrary to Korean public policy. Accordingly, whether the service on B was by a lawful method and allowed sufficient time for the preparation of a defense, or whether B appeared in the lawsuit even though there was no service, cannot be verified and remains undetermined. Of the authenticated copy, finality, and service of the judgment or the award, the appearance, the applicable convention, the grounds for recognition, and the execution judgment or decision that are required by the judgment records, what directly meets the entrance to this remedy at present is the circumstance concerning service and appearance.
The boundary of the conclusion permitted by this section is as follows. Where the applicable system, the conditions for recognition, and the domestic permission for enforcement of a foreign judgment or arbitral award are in place, the entrance to this remedy is open. What must be noted here is that this determination does not mean that domestic permission for enforcement has already been obtained, nor does it convert the fact that the foreign judgment is unfavorable to B into a violation of public policy.
2.2The Conditions That Block Relief
The conclusion of the preceding stage of analysis carries over only as the single sentence that a foreign final and conclusive judgment must satisfy all the requirements for recognition, including international jurisdiction, the right of defense, public policy, and reciprocity. Thereafter, how defects in service and the content of the judgment are handled at the recognition stage, and what the conditions are that close off the channel of the remedy, remain as questions.
The provision corresponding to this question is Civil Procedure Act Article 217 paragraph (1). The Article calls a final and conclusive judgment of a foreign court, or a judgment recognized as having the same effect, a "final and conclusive judgment, etc.," and provides that its recognition must satisfy all four requirements. The second requirement is that "the losing defendant was served, by a lawful method, with a complaint or a document equivalent thereto and a notice or order of a date, allowing sufficient time for the preparation of a defense (excluding cases of service by publication or any similar service), or, even if not served, appeared in the lawsuit," and the third requirement is that "in light of the content of such final and conclusive judgment, etc. and the litigation proceedings, the recognition of such final and conclusive judgment, etc. is not contrary to the good morals and other public order of the Republic of Korea." (Civil Procedure Act Article 217)
Accordingly, defects in service are dealt with in the item on the opportunity for a defense under the second requirement, while problems with the content of the judgment are dealt with in the item on public policy under the third requirement. Here, the right of defense at the recognition stage means the opportunity to respond that must be secured through formal service and appearance. The reason for separating these two items is that whether B was in fact given an opportunity to respond, and whether the content and proceedings of that judgment accord with the domestic order, require different facts. Under this distinction, where the essential requirements for recognition of a foreign judgment are absent, or where the statutory grounds for refusing recognition of the relevant arbitral award are found and domestic permission for enforcement cannot be obtained, if even one of the statutory requirements is unmet, the channel of the remedy is closed.
The strongest counterargument aims at the point that the outward form of an appearance may conceal the actual absence of an opportunity for a defense. Even if a record shows receipt of documents, if those proceedings were unfamiliar and there was no substantive time or means to respond, B's right of defense was protected only in form. If such circumstances are respected as they stand by an outside determination, the right of defense and public policy of domestic parties may not be sufficiently protected. Yet the author's answer is clear. Unfamiliarity as such establishes neither a defect in service or appearance under the second requirement nor a violation of public policy under the third requirement, and even if the disadvantage identified by the counterargument remains, the conclusion stands.
In the synthetic scene, only the fact is established that A seeks to enforce against B's domestic property by means of a foreign judgment document. Whether B was served, by a lawful method and with sufficient time for the preparation of a defense, or whether B appeared in the lawsuit even though B was not served, and whether the content of that judgment and the litigation proceedings are contrary to the domestic good morals or public order, cannot be determined from the scene alone. If that document is confirmed to be an arbitral award, then, since one must again determine which route and basis to apply between the execution judgment and the execution decision, the question of which route is closed off by the essential requirements for recognition of a foreign judgment and by the grounds for refusing recognition of an arbitral award also divides accordingly. Unless the applicable convention and reservations and the materials necessary for the requirements for recognition are verified, these items remain undetermined.
The conclusion permitted by this section is narrow. Defects in service and the content of the judgment are each judged under separate requirements, and mere disadvantage is not converted into a violation of public policy. If even one requirement is not in place and domestic permission for enforcement cannot be obtained, the channel of the remedy is closed, but the mere circumstance that materials are still lacking does not establish that the remedy is impossible. By contrast, this section does not accept the direction of establishing a violation of public policy merely because foreign proceedings are unfamiliar.
2.3The Boundary That Remains When There Is No Data
A foreign final and conclusive judgment must satisfy all the requirements of international jurisdiction, the right of defense, public policy, and reciprocity. Creditor A seeks to enforce a foreign judgment document against the property of debtor B, who is located in the domestic territory, so whether B had an opportunity for formal service and appearance becomes a direct issue at this point. Yet if service records cannot be confirmed and the character of the foreign proceedings remains unspecified, how far can the satisfaction of the requirements for recognition be established? This question asks the boundary of the task of distinguishing the fact that the content of the judgment is unfavorable to a domestic party from the question whether that disadvantage constitutes a violation of public policy.
Civil Procedure Act Article 217 paragraph (1) provides that a final and conclusive judgment of a foreign court or a judgment recognized as having the same effect, the so-called "final and conclusive judgment, etc.," is recognized only if it satisfies all four requirements. Among them, subparagraph 2 requires that the losing defendant was served, by a lawful method, with a complaint or a document equivalent thereto and a notice or order of a date, allowing sufficient time for the preparation of a defense, or, excluding cases of service by publication or any similar service, appeared in the lawsuit even though not served (Civil Procedure Act Article 217). In this text, service and appearance are two alternative conditions demanded of the losing defendant as the subject, and cases of service by publication are excluded from the first route. Subparagraph 3 of the same paragraph separately requires that, in light of the content of such final and conclusive judgment, etc. and the litigation proceedings, its recognition is not contrary to the good morals and other public order of the Republic of Korea (Civil Procedure Act Article 217).
The reason these two texts must be read side by side is that the stages of adjudication differ. The requirement of the right of defense is a stage of identifying the method and timing of service and the fact of appearance and judging whether the requirement is satisfied; the public policy requirement is a stage of contrasting the content of the final and conclusive judgment, etc. and the litigation proceedings with its recognition and rendering judgment. Accordingly, the fact that there was a defect in service does not immediately become a ground for a violation of public policy, and the fact that the content is unfavorable does not immediately lead to an absence of the service requirement. In this distinction, the "right of defense at the recognition stage" means the opportunity to respond that must be secured through formal service and appearance. This definition operates when service records and the fact of appearance can be confirmed, and as to matters for which those materials are unspecified, it leaves them undetermined, moving them neither toward satisfaction nor toward non-satisfaction.
However, the counterargument that the outward form of an appearance may conceal the actual absence of an opportunity for a defense aims at a valid loss. If a defect in service were covered over merely by the outward form of the defendant's appearance in the lawsuit, a domestic party would in substance accept the pronouncement without time and means to respond, and that absence of the right of defense could carry through to the enforcement stage. For the same reason, there also remains the concern that the discomfort of finding the form and content of foreign proceedings unfamiliar against domestic standards, and the values of public policy, may not be sufficiently protected. The public policy requirement is a judgment concerning cases in which, viewed in light of the content of the final and conclusive judgment, etc. and the litigation proceedings, there is a contravention of good morals or other public order, not disadvantage as such, and the service requirement remains as a separate item from that judgment.
The only fact that can be confirmed in this scene is that creditor A seeks to enforce against the property of debtor B, who is located in the domestic territory, by means of a foreign judgment document. Records as to whether B was served, by a lawful method, with a complaint or a notice of a date in the foreign lawsuit, whether there was sufficient time for the preparation of a defense, and whether B appeared, are not contained in this scene. The materials to check as to the applicable convention and reservations and the requirements for recognition have not been designated either. In this state, the presence or absence of a defect in service or a violation of public policy cannot be adjudicated definitively, and matters for which the materials of judgment are unspecified remain undetermined, being moved neither toward satisfaction nor toward non-satisfaction of the requirements for recognition. This undetermined status is distinguished from impossibility in the sense that recognition or enforcement is legally impossible. If the matter shifts from a foreign judgment to an arbitral award, the route and basis between the execution judgment and the execution decision are selected anew.
The conclusion permitted by this section is narrow. The presence or absence of a defect in service and the conformity of the content of the judgment with public policy are separated and judged as distinct requirements each, and, further, matters for which the materials of judgment remain unspecified because materials are unverified are not established as impossibility but are left undetermined. The mere fact that a foreign judgment is unfavorable to a domestic party is not converted into a violation of public policy, nor is satisfaction of the requirement of the right of defense established by the outward form of an appearance alone. Conversely, a violation of public policy is not permitted to be established merely on the circumstance that the absence of an opportunity for a defense is suspected. Beyond this boundary, no determination is made at this point as to the actual collection of service records, the establishment of the requirements for recognition, or whether domestic enforcement will succeed.
2.4The Records Needed for Determination
In the scene in which creditor A, armed with a foreign court document, seeks to enforce against the property of debtor B located in the Republic of Korea, how the foreign court served the losing defendant B and whether B actually appeared in those proceedings are separate facts. To determine whether these two facts have not been mixed together, there must be a prescribed record, such as an authenticated copy of the judgment or award.
It separates lawful service or appearance in the lawsuit from the public-order requirement as to content and procedure, and does not convert mere disadvantage into a violation of public order. This distinction is clear from the text of the provision itself. Article 217, subparagraph 2 of the Civil Procedure Act requires that "the defeated defendant has been served, in a lawful manner and with sufficient time to prepare a defense, with a written complaint or a document equivalent thereto and a notice or order of a designated date (excluding cases of service by public notice or similar service), or has appeared in the lawsuit even though not served." Here, lawful service means the act of receiving the document and the notice of a designated date in a lawful manner, and appearance means the act of proceeding to the lawsuit even where there was no service. Subparagraph 3 separately requires that "in light of the content of such final and conclusive judgments, etc. and the litigation proceedings, the recognition of such final and conclusive judgments, etc. is not contrary to the good morals or other public order of the Republic of Korea," thereby placing the procedural opportunity to respond and the review of the content of the judgment under separate items.
The above text shows that subparagraphs 2 and 3 refer to different facts and that neither substitutes for the other. Accordingly, the stage determination is made solely on the basis of prescribed records. The stage determination spoken of in this section means the judgment that decides how to compare defects in service and the content of the judgment against the requirements for recognition; the materials for that judgment are limited to the data recorded in the authenticated copy of the judgment or ruling, its finality, service and appearance, the applicable treaty, the grounds for recognition, and the execution judgment or decision. A missing record is not filled in by conjecture. Only with the data revealed in these records is the fact of service or appearance under subparagraph 2 examined, and the content-and-procedure review under subparagraph 3 is conducted within the scope in which the content and litigation proceedings of the final and conclusive judgment, etc. are recorded. The mere fact that one holds the court document in hand does not mean that the lawfulness of service has been confirmed.
Even where the record shows that the defeated defendant appeared in the lawsuit, if that appearance was made without having properly received the written complaint or the notice of a designated date, the contention is that a substantive opportunity to defend was not secured. Set against this are both the value of preserving the right to a fair trial and the concern that a domestic party, unable to respond properly in an unfamiliar foreign procedure, may be made to accept an unfavorable judgment as it stands. It is the apprehension that, if external adjudications are respected, the domestic party's right of defense and public order may not be sufficiently protected. This answer does not efface the possibility of a lack of substantive opportunity to defend pointed out by the counterargument; it merely makes clear that, where that possibility is established, it is a fact to be dealt with under the service-or-appearance requirement of subparagraph 2. Unfamiliarity as such does not constitute a violation of public order under subparagraph 3.
In the synthetic scene, creditor A holds a foreign court document, and that document is one of the records corresponding to an authenticated copy of the judgment or ruling. Yet the scene does not configure when and in what manner debtor B received the written complaint or the notice of a designated date, whether there was sufficient time to prepare a defense, or whether B appeared in the foreign lawsuit. These facts must be confirmed by prescribed records, and until the records are confirmed they remain undetermined. The facts, service, and results of performance of the actual case, as well as the year, amount, accrual date, and outcome of judgment that do not exist in the synthetic scene, are not configured, and there is no authority to supplement them. Accordingly, on the basis of this scene alone, one cannot determine whether there is a defect in service, whether a lack of opportunity to defend lies behind the outward appearance of having responded, or whether the content and procedure of the judgment are contrary to public order.
The conclusion this section permits is narrow. When assessing the right of defense at the recognition stage, one must treat separately the requirement of lawful service or appearance and the public-order requirement as to content and procedure, and must not convert the mere fact that the judgment is unfavorable to B into a violation of public order. And that assessment is limited to the data recorded in the authenticated copy of the judgment or ruling, its finality, service and appearance, the applicable treaty, the grounds for recognition, and the execution judgment or decision. A missing record is not filled in by conjecture, and items for which no record is confirmed remain undetermined. This section only holds to the boundary that it does not foreclose the possibility of a lack of substantive opportunity to defend behind the appearance of appearance, while not establishing a violation of public order on the sole ground that the foreign procedure is unfamiliar. A conclusion that, contrary to this, presumes the lawfulness of service or the substance of the appearance without a prescribed record, or refuses recognition merely because of unfamiliarity, is not permitted by this section. Accordingly, once the requirements for recognition are met, what may be done with that material and the form of enforcement remain separate questions.
2.5Circumstances That Change the Decision
On the premise that a foreign final and conclusive judgment must satisfy all the requirements for recognition, including international jurisdiction, the right of defense, public order, and reciprocity, how are defects in service and the content of the judgment treated in recognition? And what change could reverse this determination? Creditor A, holding a foreign court document, seeks to enforce against the property of debtor B located in the Republic of Korea; one must ask by what distinction the defect in B's service and the content of A's judgment are treated in recognition.
That provision provides that "①A final and conclusive judgment rendered by a foreign court, or a judgment recognized as having the same effect (hereinafter "final and conclusive judgments, etc."), shall be recognized only when it satisfies all the requirements of the following subparagraphs," and then, in subparagraph 2 among them, requires "the defeated defendant has been served, in a lawful manner and with sufficient time to prepare a defense, with a written complaint or a document equivalent thereto and a notice or order of a designated date (excluding cases of service by public notice or similar service), or has appeared in the lawsuit even though not served" (Article 217 of the Civil Procedure Act). This text respectively fixes as the subject of service an organ of the foreign lawsuit, as the object of service the defeated defendant, as the document subject to service the written complaint or a document equivalent thereto and the notice or order of a designated date, and as the interest to be protected the time needed to prepare a defense and the opportunity to respond.
This text and the determination to refuse recognition are placed at different stages. Article 217, paragraph (1), subparagraph 2 deals with defects in the method of service and in the time allowance as matters of the right of defense, while subparagraph 3 of the same paragraph separately requires that "the content of such final and conclusive judgments, etc. and the litigation proceedings are not contrary to the good morals or other public order of the Republic of Korea" (Article 217 of the Civil Procedure Act). Accordingly, defects in service are each checked under the requirement of lawful service or appearance, and improprieties in the content of the judgment are checked under the public-order requirement as to content and procedure.
The counterargument aimed at this distinction is that the appearance of appearance may conceal a real lack of opportunity to defend. The mere circumstance that B showed himself in the foreign procedure does not conclusively establish that the time and means to defend were actually afforded, and the criticism is that if a foreign judgment rendered in such an enfeebled state as to the right of defense is respected, the public order of the domestic party may not be sufficiently protected. Yet the answer given above is that a violation of public order cannot be established on the sole ground that the foreign procedure is unfamiliar. Differences in procedural culture and dissatisfaction with the judgment are not thereby elevated, as they stand, into a violation of public order under subparagraph 3; one judges separately whether defects in service and appearance are confirmed under subparagraph 2, and whether the content and procedure of the judgment are confirmed under subparagraph 3.
In the synthetic scene, the only fact belonging to this question is that creditor A seeks to enforce against the property of debtor B located in the Republic of Korea, holding a foreign court document; the results of service and performance in the actual case, and the year, amount, accrual date, and outcome of judgment that do not exist in the synthetic scene, are not configured. Therefore, whether B was lawfully served, or whether, even though not served, B appeared in the lawsuit, and whether the content and procedure of that court document are contrary to public order cannot be determined from the scene alone and remain undetermined. However, if the designated change from a foreign judgment to an arbitral award is confirmed, one must reselect the route and grounds of the execution judgment and the execution decision, discard the existing determinations of blockage and of effectiveness, and re-determine the matter from the stage anew.
In sum, the conclusion this section permits goes no further than to view defects in service and the content of the judgment as separate requirements for recognition, confirming the right of defense under subparagraph 2's requirement of lawful service and appearance, and then examining separately subparagraph 3's public-order requirement as to content and procedure. Here the right of defense at the recognition stage means the opportunity to respond to be secured through lawful service and appearance, and mere disadvantage is not converted into a violation of public order. The conclusion not permitted is one that establishes a violation of public order merely because the foreign procedure is unfamiliar, or that ends the inquiry by treating the appearance of appearance alone as guaranteeing the right of defense.
2.6The Strongest Counterargument and the Answer
This question continues within the frame of judgment left by the preceding stage. Whether the content of a judgment is favorable to the person tried is one thing; whether that person was able to respond during the trial process is a separate and further thing. Precisely this distinction is the reason why the present stage examines the appearance of appearance and the actual opportunity to defend together.
The original provision corresponding to this question is Article 217 of the Civil Procedure Act. Article 217, paragraph (1) provides that a final and conclusive judgment rendered by a foreign court, or a judgment recognized as having the same effect, that is, final and conclusive judgments, etc., shall be recognized only when it satisfies all the requirements. Among them, subparagraph 2 requires that the defeated defendant be served, in a lawful manner and with sufficient time to prepare a defense, with a written complaint or a document equivalent thereto and a notice or order of a designated date, or, except in cases of service by public notice or similar service, that the defendant appear in the lawsuit even though not served. In this text the subject is the defeated defendant, the acts are service and appearance, and the time needed to prepare a defense is a condition required of service. Subparagraph 3 is another requirement set out separately. Here only Article 217, paragraph (1) is treated.
The opportunity to defend indicated by subparagraph 2 and the violation of public order indicated by subparagraph 3 lie on different paths of judgment. The appearance of appearance can conceal a real lack of opportunity to defend. According to this definition, defects in service are examined by asking whether there was an appearance and, if so, whether the time and manner of defense were sufficient, while questions of the character of the content of the judgment and the litigation proceedings are moved over to the public-order requirement of subparagraph 3. If the two paths are not separated, the unfavorable content of the judgment is at once transformed into a violation of the right of defense.
What the counterargument, aimed at the apprehension that respecting external adjudications may leave the domestic party's right of defense and public order insufficiently protected, targets is precisely such a loss. If recognition were granted on the strength of the appearance of appearance alone, though there was in fact no time or means to defend, a domestic party such as B could be subjected to enforcement having lost even the opportunity to defend in the Republic of Korea. The discomfort is also great that the circumstance of being unable to file an answer or a preparatory pleading because the procedure was unfamiliar is erased by the trace of appearance. Still, within the range of separating lawful service or appearance from the public-order requirement as to content and procedure, and of not converting mere disadvantage into a violation of public order, a violation of public order cannot be established on the sole ground that the foreign procedure is unfamiliar. The lack of opportunity to defend pointed out by the counterargument must be dealt with by examining the conditions of that lack; it cannot be moved over to the public-order requirement merely on the ground of unfamiliarity.
Whether B was served in a lawful manner and with sufficient time to prepare a defense, or whether, even though not served, B appeared in the lawsuit, and whether B's appearance was sufficient as an opportunity to defend, cannot be adjudged on the basis of this scene alone. Data not confirmed in this way must be left as undetermined and cannot be filled in as evidence of a violation of public order.
The conclusion this section permits is that lawful service or appearance is separated from the public-order requirement as to content and procedure; that a real lack of opportunity to defend is not denied merely by the appearance of appearance; and yet that a violation of public order is not established merely on the ground of unfamiliarity. Beyond this, the concrete conditions under which a violation of the right of defense is established, or other types of violation of public order, are not what this section determines. The right of defense at the recognition stage holds its place of judgment in conformity with the definition that it is the opportunity to respond to be secured through lawful service and appearance.
2.7The Link to the Application and the Dispositive Part
Taking up the conclusion of the preceding section that a violation of public order cannot be established merely because the foreign procedure is unfamiliar, this section examines separately whether there was a defect in service and whether the content of the judgment can be accepted in the Republic of Korea. Creditor A, holding a foreign court document, seeks to enforce against the property of debtor B located in the Republic of Korea, and in this situation the issue is whether B was in fact given an opportunity to respond. This question, independent of whether the outcome of the judgment is favorable to B, identifies the matters that must be verified procedurally at the recognition stage.
Article 217, paragraph (1) of the Civil Procedure Act provides that for a final and conclusive judgment rendered by a foreign court, or a judgment recognized as having the same effect, that is, final and conclusive judgments, etc., to be recognized, it must satisfy all four requirements. This text specifies the subject as the defeated defendant, the acts as service of a written complaint, a notice of a designated date, and the like, and appearance in the lawsuit, and the conditions as a lawful manner and the time needed to prepare a defense. Service by public notice or similar service is excluded from the cases that satisfy the service requirement.
Alongside this, subparagraph 3 places as a separate requirement that "the content of such final and conclusive judgments, etc. and the litigation proceedings are not contrary to the good morals or other public order of the Republic of Korea." The two subparagraphs address different harms. Subparagraph 2 asks whether the opportunity to respond was in substance open to the defeated defendant, and subparagraph 3 asks whether the content and litigation proceedings of the final and conclusive judgments, etc. are contrary to the good morals or public order of the Republic of Korea. Accordingly, defects in service are dealt with in the review under subparagraph 2, and violations of public order in the content of the judgment or its procedure are dealt with in the review under subparagraph 3. A violation of public order is not established merely by the fact that the foreign judgment is unfavorable to B.
Even where a record remains that the defeated defendant appeared in the lawsuit, if that appearance was made without sufficient time or materials for a defense, the substantive opportunity to respond may have been lacking. Moreover, the concern also remains behind that if external adjudications are respected, the domestic party's right of defense and public order may not be sufficiently protected. While not converting unfamiliarity itself into a violation of public order under subparagraph 3, one must separately verify under subparagraph 2 whether an opportunity to respond lay behind the appearance of appearance.
The records of service and appearance shown in the foreign court document held by creditor A are materials to be compared against the items of confirmation: the authenticated copy of the judgment or award, its finality, service and appearance, the applicable treaty, the grounds for recognition, and the execution judgment or decision. Whether B received the written complaint or the notice of a designated date in a lawful manner and with sufficient time to prepare a defense, or whether B appeared in the lawsuit even though not receiving them, is examined in accordance with the conditions of subparagraph 2. Separately from that, whether the content and litigation proceedings of such final and conclusive judgments, etc. are contrary to the good morals or public order of the Republic of Korea is judged in accordance with the conditions of subparagraph 3. Because the synthetic scene does not fix the actual time of service or the concrete aspects of the appearance, the presence or absence of a defect in service and the sufficiency of the opportunity to defend remain undetermined.
What can be confirmed in this section is that defects in service and the public-order requirement must be judged separately, and that a violation of public order cannot be established merely because one dislikes the content of the judgment. Going further, a violation of public order cannot be established merely because the foreign procedure is unfamiliar. Whether an opportunity to respond lay behind the appearance of appearance is dealt with separately in the review under subparagraph 2, and whether there is a contravention of the public order as to content and procedure is dealt with in the review under subparagraph 3. Only, insofar as actual records of service or the circumstances of the appearance are not confirmed here, whether the requirements for recognition are satisfied cannot be determined.
2.8The Scope This Section Undertakes
외국의 확정재판을 국내 재산에 대한 집행으로 옮기려는 채권자 A와 국내에 재산을 둔 채무자 B 사이에서, 전자의 판단이 곧바로 후자의 판단을 대신하지는 않는다.
그 물음에 답할 수 있도록 민사소송법 제217조는 확정재판등이 승인되려면 네 요건을 모두 갖추어야 한다고 정하고, 그중 제2호는 “패소한 피고가 소장 또는 이에 준하는 서면 및 기일통지서나 명령을 적법한 방식에 따라 방어에 필요한 시간여유를 두고 송달받았거나(공시송달이나 이와 비슷한 송달에 의한 경우를 제외한다) 송달받지 아니하였더라도 소송에 응하였을 것”을 요구한다(민사소송법 제217조). 이 문언이 가리키는 주체는 외국 절차의 패소한 피고이고, 행위는 소장·준하는 서면·기일통지서나 명령의 송달과 그에 따른 응소이며, 조건은 적법한 방식과 방어에 필요한 시간여유다.
이 근거는 두 판단을 나누어 읽게 한다. 제2호의 송달과 응소는 소송에 대한 응답 기회가 있었는지를 묻는 절차 요건이고, 제3호의 내용과 소송절차의 공서는 그 재판의 승인이 대한민국의 선량한 풍속이나 사회질서에 어긋나지 않는지를 묻는 별도의 요건이다(민사소송법 제217조). 이 둘을 한데 묶으면 송달 흠을 공서로 넘기거나, 공서 논의를 송달 요건으로 끌어오게 되어 각 요건이 요구한 조건이 흐려진다.
그 구별을 흐리게 만드는 강한 반론은 응소의 외형이 실제 방어 기회의 부족을 가릴 수 있다는 데 있다. 가령 B가 외국 법정에 모습을 드러냈더라도 그 절차가 낯설어 답변서를 낼 틈이나 변론에 대응할 수단을 얻지 못했다면, 응소라는 모양만 남고 응답 기회는 비어 있을 수 있다. 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 우려가 여기서 나온다. 낯섦 자체는 제2호가 정한 적법한 방식과 시간여유의 유무를 따지는 자료일 뿐이며, 응답 기회의 실질적 결핍이 확인되는 경우도 여전히 제2호의 판단 범위에 남는다.
합성 장면에서 A는 외국의 재판문서로 B의 국내 재산에 집행하려 할 뿐이고, 그 문서의 송달 방식·시간여유·응소 여부나 내용과 절차가 선량한 풍속이나 사회질서에 미치는 영향은 정해지지 않았다. 자료가 확인되지 않은 항목은 미확정으로 남는다.
따라서 이 절이 허용하는 결론은 송달 흠과 재판 내용·절차의 공서를 나누어 보고, 앞의 것을 응답 기회의 유무로 다룬다는 좁은 판단이다. 이 절이 허용하지 않는 결론은 판결 내용이 B에게 불리하다는 사실만으로 공서 위반을 인정하거나, 응소라는 외형만으로 방어 기회가 충분했다고 확정하는 방향이다. 승인 요건의 구비 여부와 그에 따른 국내 집행의 경로에 관한 판단은 여기서 확정하지 않는다.
2.9Application of the Text of the Provisions and the Holdings of Precedents
이 장면에서 송달 흠과 재판 내용이 승인에서 어떻게 다뤄지는지가 물음이다. 저자는 법정 송달 또는 응소와 내용·절차의 공서 요건을 나누고, 단순한 불리함을 공서 위반으로 바꾸지 않는 방향으로 이 물음에 답한다. 이 구별은 B의 반응 기회가 있었는지와 확정재판등의 내용이 국내 질서에 맞는지를 각각 다른 항목에서 검사하게 한다.
민사소송법 제217조 제1항은 외국법원의 확정판결 또는 이와 동일한 효력이 인정되는 재판, 이하 확정재판등이라 부르는 대상이 「다음 각호의 요건을 모두 갖추어야 승인된다」고 정한다(민사소송법 제217조). 이 문언은 확정재판등이라는 주체 아닌 대상과 승인이라는 효과를 먼저 묶고, 요건의 목록을 이어서 둔다. 여기서 다루는 범위는 제217조 제1항에 해당하는 문언뿐이며, 판결이유나 다른 항의 내용은 이 물음의 판정 근거로 넣지 않는다. 조문의 다른 쟁점까지 이 자리에서 해설하지 않는다.
이 문언의 각호가 가리키는 조건은 서로 다른 단계를 검사한다. 이는 승인 단계의 방어권, 즉 법정 송달과 응소를 통해 보장할 응답 기회를 표시한다. 제3호는 그 확정재판등의 내용 및 소송절차에 비추어 그 확정재판등의 승인이 대한민국의 선량한 풍속이나 그 밖의 사회질서에 어긋나지 아니할 것을 따로 요구한다(민사소송법 제217조). 두 항목을 구별해야 하는 이유는, 응소의 유무를 공서 판단으로 끌어오면 방어 기회의 표시와 내용·절차의 질서 판단이 한 항목에 섞이기 때문이다. 해당 원문 문언만 외부 판단의 국내 승인과 집행의 판정 근거로 삼고, 요건을 모두 갖춘 경우에 승인을 인정하는 데서 판단을 멈춘다.
이 구별에는 손실이 남는다. 응소의 외형이 실제 방어 기회의 부족을 가릴 수 있고, 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 불안이 남는다. B가 외국 절차가 낯설다는 이유만으로 공서 위반을 확정할 수는 없다는 것이 이 반론에 대한 답이다. 제3호의 문언은 확정재판등의 내용 및 소송절차를 기준으로 삼을 뿐, 절차의 낯섦 자체를 정해진 사유로 두지 않는다(민사소송법 제217조). 그렇다고 불리함이 지워지는 것은 아니며, 반론이 지적한 방어 기회의 결핍은 제2호의 송달·응소 조건 쪽에서 표시되는 문제로 남는다.
이 장면에는 B가 소장 또는 이에 준하는 서면 및 기일통지서나 명령을 적법한 방식에 따라 방어에 필요한 시간여유를 두고 송달받았는지, 아니면 소송에 응하였는지가 정해져 있지 않다. 확정재판등의 내용 및 소송절차가 대한민국의 선량한 풍속이나 그 밖의 사회질서에 어긋나는지도 장면만으로 판단할 수 없다. 따라서 제2호의 송달·응소 조건과 제3호의 내용·절차 공서 조건은 각각 확인된 자료에 맞추어 대조할 뿐, 장면에서 승인을 확정하거나 거부하기에는 미확정이다. 외국재판이 중재판정으로 바뀌면 집행판결과 집행결정의 경로 및 근거를 다시 고른다는 대조는 이 절의 문언 적용 판정에는 넣지 않는다.
이 절이 허용하는 결론은 좁다. 해당 원문 범위 안의 문언만 적용하여, 제2호의 법정 송달 또는 응소 표시와 제3호의 내용·절차 공서 표시를 나누어 보고, 단순한 불리함을 공서 위반으로 바꾸지 않는 것으로 끝난다. 허용되지 않는 것은 판결이유나 다른 항으로 판단을 넓히고, 응소의 외형만으로 실제 방어 기회의 부족을 확정하거나, 외국 절차가 낯설다는 이유만으로 공서 위반을 확정하는 결론이다. 승인 요건의 확인 여부와 국내 집행의 허가 여부는 이 자리에서 함께 끝내지 않는다.
2.10Fine Distinctions Within the Stage
그 한 문장은 외국 확정재판이 국제재판관할·방어권·공서·상호보증 등 승인 요건을 모두 갖추어야 한다는 것이었다. 이 장면에서 B가 맞서는 판단은 하나의 덩어리가 아니다. 외부 판단의 국내 승인과 집행 안에서 다시 나누어 판정할 부분은 무엇인가.
이 물음에 답하기 위해 해당 문언을 먼저 놓는다. 민사소송법 제217조 제1항은 "①외국법원의 확정판결 또는 이와 동일한 효력이 인정되는 재판(이하 “확정재판등”이라 한다)은 다음 각호의 요건을 모두 갖추어야 승인된다. <개정 2014. 5. 20.>"이라고 선언한다. 이 문언이 가리키는 주체는 외국법원의 확정재판등이며, 그 행위는 국내에서의 승인이고, 조건은 아래 각호의 요건을 모두 갖추는 것이다. 조문의 다른 항과 다른 승인 절차는 여기서 다루지 않는다.
같은 항의 각호는 그 조건을 항목별로 구체화한다. 제2호는 "2. 패소한 피고가 소장 또는 이에 준하는 서면 및 기일통지서나 명령을 적법한 방식에 따라 방어에 필요한 시간여유를 두고 송달받았거나(공시송달이나 이와 비슷한 송달에 의한 경우를 제외한다) 송달받지 아니하였더라도 소송에 응하였을 것"이라고 규정한다(민사소송법 제217조). 제3호는 "3. 그 확정재판등의 내용 및 소송절차에 비추어 그 확정재판등의 승인이 대한민국의 선량한 풍속이나 그 밖의 사회질서에 어긋나지 아니할 것"이라고 규정한다(민사소송법 제217조). 이 둘은 승인 단계의 방어권, 즉 법정 송달과 응소를 통해 보장할 응답 기회와, 내용·절차의 공서 요건을 각각 나누어 맡는다. 송달 흠은 제2호가, 재판 내용과 절차의 공서 문제는 제3호가 담당하며, 여기에 새 단계를 끼워 넣지 않는다.
이 구분이 견디어야 하는 가장 강한 반론은 응소의 외형이 실제 방어 기회의 부족을 가릴 수 있다는 점이다. 외국 절차에서 출석했더라도 그 출석이 뜻 있는 방어로 이어지지 못했을 수 있고, 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 우려가 그 바닥에 있다. 이 답은 반론이 지적한 손실을 지우지 않는다. 응소의 외형에 실제 방어 기회 결여가 겹쳐 있다면 그것은 제2호의 송달·응소 심사 안에서 다룰 몫이며, 그 심사에서 불리한 결과만으로 제3호의 공서 위반을 대신 확정하지는 않는다.
합성 장면으로 돌아가면, A가 내세운 외국의 재판문서가 어떤 방식으로 B에게 주어졌는지, B가 외국 절차에서 실제로 소송에 응했는지는 이 장면에 정해져 있지 않다. 따라서 승인 단계의 판단은 두 조건을 나란히 놓고 대조하는 데 머문다. 송달 흠이나 응소가 문제라면 제2호의 요건을, 내용과 절차가 공서에 어긋난다는 주장이라면 제3호의 요건을 각각 문턱으로 삼는다. 장면만으로 어느 쪽이 충족되었거나 결여되었다고 단정할 수 없고, 승인 요건에 필요한 자료가 확인되지 않은 사항은 미확정으로 남는다. 이 미확정 상태는 곧바로 승인 불능을 뜻하지 않는다.
이 절이 허용하는 결론은 명시한 조건에 한정된 구별이다. 송달·응소의 흠은 제2호가, 내용·절차의 공서 문제는 제3호가 나누어 맡고, 단순히 불리한 외국 판결 내용을 곧바로 공서 위반으로 바꾸지 않으며, 외국 절차의 낯설음 자체를 공서 위반의 확정 근거로 삼지 않는다. 이 절이 허용하지 않는 것은 여기에 없는 조건이나 단계를 발명해 판정을 더 쪼개는 일이다.
2.11Synthesis of Effectiveness, Blockage, and Undetermination
이 장면에서 B에 대한 외국 절차가 제대로 진행되었는지, 그리고 그 내용이 국내에서 받아들여질 수 있는지가 함께 문제 된다. 앞에서 다룬 송달 흠의 처리와 재판 내용의 평가는 승인 판단의 서로 다른 자리에 놓인다. 이번 단계에서는 그 두 자리를 지나 국내 승인과 집행이 실제로 열리는 상태, 막히는 상태, 확인되지 않은 상태를 어떻게 나누는지가 쟁점이 된다. 승인이 열린다는 말과 국내 재산을 결국 회수한다는 말은 같은 뜻이 아니므로 각 단계의 조건을 따로 확인해야 한다.
외국 확정재판의 승인 요건을 정한 문언은 이렇게 나뉜다. 민사소송법 제217조 제1항은 외국법원의 확정판결 또는 이와 동일한 효력이 인정되는 재판(이하 '확정재판등'이라 한다)이라고 정리한 뒤, 그 요건을 모두 갖추어야 승인된다고 선언한다(민사소송법 제217조). 그 요건으로 조문은 국제재판관할의 인정, 패소한 피고에게 소장이나 이에 준하는 서면 및 기일통지서나 명령이 적법한 방식으로 송달되었거나 또는 소송에 응하였을 것, 확정재판등의 내용 및 소송절차에 비추어 확정재판등의 승인이 대한민국의 선량한 풍속이나 그 밖의 사회질서에 어긋나지 아니할 것, 상호보증 또는 요건의 균형을 요구한다(민사소송법 제217조). 이 가운데 송달과 응소는 피고에게 방어에 필요한 시간여유를 두고 응답 기회가 주어졌는지를 묻는다. 공시송달과 이에 준하는 방식은 그 예외로 빠져 있다. 내용과 절차의 공서 요건은 판결문이 도달한 결과나 불리함이 아니라 재판 자체의 내용과 절차가 국내 질서와 충돌하는지를 따로 본다.
이 문언의 구조는 승인 단계의 판정을 두 층으로 나누는 근거가 된다. 먼저 확정재판등이라는 대상이 어느 체계에서 나온 판단인지 정하고, 이어서 제1항 각 호의 요건을 모두 갖추었는지 확인한다. 그 요건이 모두 갖추어졌을 때만 승인이 열린다. 이는 판결 내용이 그 당사자에게 유리한지와는 무관한, 절차상 보장의 문제다. 다만 요건을 모두 갖추었다고 곧바로 국내 재산에 대한 집행까지 허가되는 것은 아니다. 국내 집행 허가는 별도의 단계이며, 판정 정본·확정·송달과 응소, 적용 협약과 승인 사유, 집행판결 또는 결정의 기록이 어느 경로로 요구되는지는 외국재판과 중재판정에 따라 갈린다.
가장 강한 반론은 이런 절차적 구별이 실제 방어 기회를 놓칠 수 있다는 데 겨눈다. 응소했다는 외형만으로 방어권이 충분히 보장되었다고 보면, 낯선 외국 절차에서 답변할 시간이나 방법을 제대로 갖지 못한 당사자가 그 흠을 국내에서 다툴 여지가 줄어든다. 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 우려도 같은 자리에서 나온다. 그러나 앞의 답은 흔들리지 않는다. 낯섦은 그 자체로 요건 결여나 거절 사유가 되지 않으며, 공서 요건은 송달과 응소 요건과 구별되어 해당 재판의 내용과 절차가 국내 선량한 풍속이나 사회질서와 충돌하는지를 기준으로 판단한다.
합성 장면에서 채권자 A는 외국의 재판문서를, 채무자 B의 국내 재산에 대한 집행 근거로 내밀지만, 그 문서가 어떤 체계의 판단인지, B에게 어떻게 송달되었는지, 소송에 응했는지, 적용 협약과 그 유보가 무엇인지는 이 장면만으로 확인되지 않는다. 따라서 승인 요건의 충족 여부도 미확정으로 남는다. 확정재판등의 정본과 확정·송달 및 응소 자료, 그리고 집행허가에 필요한 기록이 모이지 않은 상태에서 승인 거절이나 집행 불능을 단정할 수 없다. 이 대조는 조건을 바꾼 검사일 뿐이며, 이 장면에서 실제로 중재판정이 존재한다는 사실로 읽히지 않는다.
따라서 이 절이 허용하는 결론은 명확한 경계 안에 있다. 적용 체계가 정해지고 외국재판의 승인 요건이 모두 갖추어졌거나, 해당 중재판정에 법정 승인 거절 사유가 없어 국내 집행 허가를 받을 수 있는 경우에 한해 길이 열린다. 반대로 승인 필수 요건이 없거나 법정 거절 사유가 인정되면 집행 허가를 받을 수 없어 막힌다. 다만 외국 절차가 낯설다는 이유만으로 공서 위반을 확정하는 것은 이 구별에 어긋난다. 자료가 확인되지 않은 항목은 미확정으로 남기되, 그것은 구제 불능의 선언이 아니다.
2.12Conclusion Carried Over to the Next Section
The analysis of the preceding stage had advanced to the point that, for a foreign final judgment to be recognized, it must satisfy all of the requirements of international jurisdiction, right of defense, public policy, and reciprocity. If those recognition requirements are met, the next question is what separate step must be taken in order to make that judgment document a means of execution in Korea.
The subject of this provision is a final judgment or the like of a foreign court, its act is recognition in the Republic of Korea, and the condition for recognition is that all of the requirements of each subparagraph be satisfied. Among them, subparagraph 2 asks whether the losing defendant was served, in a lawful manner and with sufficient time to prepare a defense, with the complaint or a document equivalent thereto and with a notice or order fixing a date, or, if not served, appeared in the lawsuit (Civil Procedure Act, Article 217). The 'right of defense at the recognition stage' referred to here means the opportunity to respond, guaranteed through service under the law and appearance in the action.
The opportunity to defend that subparagraph 2 establishes by way of service and appearance, and the public policy requirement of content and procedure that subparagraph 3 establishes, are distinct stages of adjudication (Civil Procedure Act, Article 217). Subparagraph 2 examines, by the form and timing of the procedure, whether the losing defendant actually had an opportunity to answer; subparagraph 3 asks whether the content of the final judgment or the like and the litigation proceedings run counter to the good morals or social order of the Republic of Korea. The reason these two must be kept apart is that, if the presence or absence of an opportunity to defend and the question whether the outcome of the judgment is favorable are mixed into a single question, even a merely unfavorable judgment is dragged over into a violation of public policy. As analyzed above, even a foreign final judgment that satisfies all of the recognition requirements does not thereby substitute for a domestic means of execution, and so a separate question remains.
The counterargument that the outward form of appearance may conceal a genuine lack of opportunity to defend points to the possibility that, even where there are formal traces of service or attendance, debtor B may in substance have been unable to defend himself in the foreign procedure. The loss identified by this counterargument is the disadvantage of a party who, unfamiliar with the procedure and thus unable to prepare an answer, remains bound by the effect of that judgment; and that inconvenience is a gap in the right of defense that is difficult to capture by the words 'public policy' alone. The confirmed answer to this is clear. Yet the very structure of deciding subparagraph 2 and subparagraph 3 separately does not dispel that concern, and the task remains of distinguishing, and confirming from the record, under which requirement and how protection was afforded.
In the synthetic scene, if one looks only at the fact that creditor A seeks, on the basis of a foreign judgment document, to execute against the property of debtor B located in Korea, whether B was served in a lawful manner, whether sufficient time to prepare a defense was allowed, or whether, if not served, he appeared in the lawsuit cannot be determined from this scene alone. Likewise, whether the content of the judgment document and the litigation proceedings run counter to the good morals or social order of Korea cannot be judged on the facts of this scene alone. Accordingly, whether the recognition requirements are satisfied remains undetermined. What can be confirmed here is that the question asking whether there was an opportunity to defend and the question asking whether the content of the judgment is to one's liking are distinct, and that the mere fact that the foreign procedure is unfamiliar does not permit folding the latter into the former.
The conclusion permitted in this section goes no further than that defects in service and the content of the judgment are treated at the recognition stage as distinct requirements—namely, the opportunity to defend under subparagraph 2 and the public policy requirement under subparagraph 3—and no further than the line that mere unfavorability does not turn into a violation of public policy. This conclusion does not determine what means of execution are needed in Korea once the recognition requirements are met, nor what results those means actually produced; unconfirmed materials remain undetermined and are not moved over into unremediability. If the recognition requirements are met, is an execution judgment unnecessary?