Summary
This chapter assesses, in accordance with the statutory criteria, results manifestly contrary to the fundamental order of domestic law and international treaties, and the extent to which litigation costs are included.
4.1The Standard by Which the Path Opens
Cross-border relief must not be blocked merely by the impression of a large amount. Creditor A seeks to execute, against the domestic property of debtor B, a foreign judicial document. As confirmed in the preceding section, compulsory execution of a foreign judgment in Korea requires an execution judgment, and that procedure is not a trial on the merits that re-examines the rightness or wrongness of the judgment. Then, is recognition always refused when the foreign damages award is large? The question is what the standard is by which the channel of this relief opens.
The statutory text answering this question is Article 217-2 of the Civil Procedure Act. Article 217-2 (1) provides that where a final and conclusive judgment, etc. on damages would produce a result manifestly contrary to the basic order of the laws of the Republic of Korea or of the international treaties concluded by the Republic of Korea, the court may not recognize all or part of the relevant final and conclusive judgment, etc. Here, the court is the decision-maker on whether to recognize, the final and conclusive judgment, etc. on damages is the object, and a result manifestly contrary to the basic order is the condition of the restriction.
Article 217-2 (2) provides that, when the court examines the requirements of paragraph (1), it shall take into account whether, and to what extent, the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees (Civil Procedure Act, Article 217-2). This instruction is a direction of examination that brings the scope into the assessment without predetermining the outcome. Counting the amount to gauge whether a threshold line has been reached, and establishing the requirement of a result manifestly contrary to the basic order, are different stages of judgment. The former only serves as evidentiary material for the latter; the requirement of the latter is not satisfied by the output of the former alone. It is precisely because of this distinction that a manifest violation of the basic order cannot be established on the basis of the size of the amount alone.
The concern that excessive damages may be executed against domestic property is real. From the standpoint of debtor B, the burden arises that the performance determined in the foreign proceedings may lead directly to the attachment and sale of domestic property. If the scope of damages is broadly extended to include litigation costs and expenses as well, the breadth of the burden increases further. Yet if the entrance is locked on the basis of this concern, cross-border relief itself is blocked. The limitation on the recognition of damages means the statutory limit with respect to a result manifestly contrary to the basic order, and this limit operates only in a judgment where the requirements are satisfied. The disadvantage pointed out by the counterargument does not disappear, but the restriction cannot be treated as satisfied by that disadvantage alone.
The facts established in this synthetic scene are only that A seeks to execute, with a foreign judicial document, against B's domestic property. Whether the framework for applying a foreign judgment or arbitral award, the conditions for recognition, and permission for domestic execution are in place; whether the required performance, parties, and conditions are specified in the claim; and whether B was able to defend the right asserted in the chosen action, cannot be confirmed from this scene alone. The state in which the materials necessary for the applicable treaty and for the reservations or requirements for recognition have not been confirmed remains undetermined. The mere fact that materials are lacking does not itself mean that recognition is impossible or that relief is unavailable.
The conclusion permitted in this section is narrow. Recognition must not be refused merely on the impression that the foreign damages award is large or on concern over its size, and the judgment of the restriction is bound by the statutory requirement of a result manifestly contrary to the basic order and by the matter for examination concerning the scope of inclusion of litigation costs. By contrast, establishing a manifest violation of the basic order on the basis of the size of the amount alone is a conclusion this section does not permit. The framework for application, the conditions for recognition, permission for domestic execution, the specification of performance, parties, and conditions, and the possibility of defense were presented only as conditions at the entrance; whether they are satisfied has not been established in the present scene.
4.2The Conditions That Block Relief
Creditor A seeks to execute, with a foreign judicial document, against the domestic property of debtor B, and in this scene the question is placed in the foreground: is recognition always refused when the foreign damages award is large? On the premise that compulsory execution of a foreign judgment in Korea requires an execution judgment and that this procedure is not a trial on the merits that re-examines the rightness or wrongness of the judgment, the present task is what the conditions are that close the channel of relief.
The provision corresponding to this question is Article 217-2 of the Civil Procedure Act. Its paragraph (1) provides that where a final and conclusive judgment, etc. on damages would produce a result manifestly contrary to the basic order of the laws of the Republic of Korea or of the international treaties concluded by the Republic of Korea, all or part of the relevant final and conclusive judgment, etc. may not be recognized (Civil Procedure Act, Article 217-2). Here, the final and conclusive judgment, etc. on damages is the object of recognition, the court is the decision-maker on whether to recognize, and the condition of a result manifestly contrary to the basic order becomes the requirement that prevents recognition. Paragraph (2) of the same Article adds that, when examining that requirement, the court shall take into account whether, and to what extent, the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees (Civil Procedure Act, Article 217-2).
This text distinguishes the absolute size of the amount from the standard of examination. What paragraph (1) blocks in the way of recognition is the result requirement of manifest contrariety, and what paragraph (2) directs to be considered in the examination is whether litigation costs and expenses enter into the scope of damages, and to what extent. The reason these two standards are kept separate is that, whereas the former requirement is the statutory limit that determines whether recognition is possible, the latter is an object of confirmation used in judging that limit. Here, the limitation on the recognition of damages means the statutory limit with respect to a result manifestly contrary to the basic order. In light of this definition, recognition cannot be refused merely on the impression that the foreign damages award is large, and whether there is a result manifestly contrary to the basic order of domestic law or of an international treaty must be examined according to the statutory standard.
The strongest counterargument is aimed at the concern that excessive damages may be executed against domestic property. If the foreign determination is respected as it stands, a vast sum of damages may extend to B's domestic property, and there is the worry that the right of defense and public order of domestic parties may not be sufficiently protected at that point. This concern points out not a simple matter of convenience but that the values the recognition system seeks to protect may be infringed. The answer given above, however, is that a manifest violation of the basic order cannot be established on the basis of the size of the amount alone. Without erasing the loss and inconvenience raised by the counterargument, it does not convert the mere circumstance that the loss is large into the establishment of manifest contrariety.
The facts that can be confirmed in this scene are only that A seeks execution against B's domestic property with a foreign judicial document, and all other circumstances are undetermined. To what extent costs and expenses related to the lawsuit, including attorney's fees, were included in the scope of damages recognized by the foreign court, and whether that result produces a result manifestly contrary to the basic order of domestic law or of an international treaty, cannot be judged from this scene alone. Accordingly, it is also unconfirmed whether the essential requirements for recognition of a foreign judgment are satisfied, and whether a statutory ground for refusal of recognition is found so that permission for domestic execution cannot be obtained. Whether the channel of this relief is actually open cannot be determined.
Accordingly, the permitted conclusion is narrow: recognition cannot be refused on the basis of the size of the amount alone, and whether there is a result manifestly contrary to the basic order, the statutory standard, must be examined. The conclusion not permitted is that a manifest violation of the basic order is established on the basis of the size of the amount alone, or that undetermined circumstances amount at once to unavailability of relief. If even one of the statutory requirements is not satisfied, the channel of relief closes, but a state of insufficient materials is not treated as equivalent to that closure.
4.3The Boundary That Remains When There Is No Data
As set out above, where the essential requirements for recognition of a foreign judgment are absent, or where a statutory ground for refusal of recognition of the relevant arbitral award is found so that permission for domestic execution cannot be obtained, this relief is blocked. Yet the absence of a confirmed requirement cannot at once be taken to mean that a ground for refusal exists.
The statutory text responding to this question is placed in Article 217-2. Article 217-2 of the Civil Procedure Act provides: "Where a final and conclusive judgment, etc. on damages would produce a result manifestly contrary to the basic order of the laws of the Republic of Korea or of the international treaties concluded by the Republic of Korea, the court may not recognize all or part of the relevant final and conclusive judgment, etc." Paragraph (2) of the same Article adds: "When examining the requirements of paragraph (1), the court shall take into account whether, and to what extent, the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees." Here, the 'court' is the decision-maker that examines domestic recognition, the 'final and conclusive judgment, etc. on damages' is the object, and a 'result manifestly contrary to the basic order' is the condition that prevents recognition.
Reading this text, the object of examination is not the impression of the amount itself but whether there is a result manifestly contrary to the basic order. And in judging that result, one examines together whether the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees, and what that scope is. The reason these two stages are divided is that, whereas the former stage defines 'what the limit of recognition is', the latter stage defines 'what is looked to as material in adjudicating that limit'. Here, if the materials necessary for the applicable treaty and its reservations or for the requirements for recognition are not confirmed, the adjudication remains undetermined. Insufficient materials are not converted at once into unavailability of relief.
The counterargument points to the direction in which the flow of money will head. There is the concern that excessive damages may be executed against domestic property. The fact that B's domestic property may be left fully exposed to the broad scope of damages set out in the foreign judicial document, and the fact that the right of defense and public order may not be sufficiently protected, are disadvantages that cannot be erased. Even so, a manifest violation of the basic order cannot be established on the basis of the size of the amount alone. The provision merely requires that the scope of inclusion of litigation costs be considered; it lays down no rule refusing recognition on the basis of the size of the sum alone.
In this synthetic scene, the only fact remaining on this question is that A seeks to execute, with a foreign judicial document, against B's domestic property. How costs and expenses related to the lawsuit, including attorney's fees, enter into the scope of damages in that document, and what the materials necessary for the applicable treaty, its reservations, and the requirements for recognition are, have not been determined. Once the materials are confirmed, one moves to the stage of rendering an adjudication, but if they remain unconfirmed, they must be left undetermined. Whether the outcome will be a win or a loss, and how much will be recovered, cannot be determined in this scene.
What is established in this section is the boundary that the size of the amount is not automatically converted into a manifest violation of the basic order, and the procedure that leaves unconfirmed matters undetermined so as to distinguish them from cases where relief is blocked. Determinations that refuse on the basis of the amount alone, or that convert insufficient materials into unavailability of relief, lie outside this part. The limitation on the recognition of damages means the statutory limit with respect to a result manifestly contrary to the basic order, and what must be looked to in order to apply that limit remains to be settled.
4.4The Records Needed for Determination
Is recognition always refused when the foreign damages award is large? To answer this question, the kinds of records on which that judgment is based must first be made clear.
A result manifestly contrary to the basic order of domestic law and international treaties, and the scope of inclusion of litigation costs, are examined according to the statutory standard. Article 217-2 of the Civil Procedure Act provides: "Where a final and conclusive judgment, etc. on damages would produce a result manifestly contrary to the basic order of the laws of the Republic of Korea or of the international treaties concluded by the Republic of Korea, the court may not recognize all or part of the relevant final and conclusive judgment, etc." The decision-maker indicated by this text is the court that decides whether to recognize, the object is the final and conclusive judgment, etc. on damages, and the condition is the case where that result is manifestly contrary to the basic order.
Whether recognition is granted is adjudicated solely on the basis of the materials recorded in the certified copy of the judgment or award, its finality and service, appearance and response, the applicable treaty, grounds for recognition, and the execution judgment or decision. As the preceding section confirmed, this standard touches on the point that the execution judgment procedure is not a trial on the merits. The stage adjudication is made only on the specified records, and absent records are not filled in by presumption. Here, 'limitation on recognition' means the statutory limit with respect to a result manifestly contrary to the basic order.
There is also the counterargument that, if external determinations are respected, the right of defense and public order of domestic parties may not be sufficiently protected. The disadvantage pointed out by the counterargument is real, but the statutory requirements cannot be treated as satisfied by that disadvantage alone.
The facts confirmed in the present scene are only A's judicial document, B's domestic property, and the intention to execute. On these facts alone, whether the materials necessary for recognition have been secured cannot be judged from the scene alone. Accordingly, the range in which the materials have not been confirmed remains undetermined. If the foreign judgment is replaced by an arbitral award, the route and basis between the execution judgment and the execution decision must be chosen anew.
The conclusion this section permits is that recognition cannot be refused on the basis of the size of the amount alone, and that the stage is adjudicated only on the specified records. The conclusions it does not permit are establishing a manifest violation of the basic order on the sole ground that the amount is large, or supplementing matters absent from the record by presumption.
4.5Circumstances That Change the Decision
When creditor A, holding a foreign final and conclusive judgment document, seeks execution against the domestic property of debtor B, the remaining question is whether the domestic court may refuse recognition on the sole basis of the fact that the amount of damages contained in that judicial document is large. The question that follows is whether, in the event of a particular change, namely that the foreign judgment is replaced by an arbitral award, the existing stage adjudication can be left as it stands.
The statutory standard is set in Article 217-2 of the Civil Procedure Act. Its paragraph (1) provides: "Where a final and conclusive judgment, etc. on damages would produce a result manifestly contrary to the basic order of the laws of the Republic of Korea or of the international treaties concluded by the Republic of Korea, the court may not recognize all or part of the relevant final and conclusive judgment, etc." (Civil Procedure Act, Article 217-2). Here, the decision-maker is the domestic court, the object is the final and conclusive judgment, etc. on damages, and the requirement is the case where a result manifestly contrary to the basic order is produced.
The ground set by that provision and the conclusion of its application are not different from one another. Paragraph (2) of the same Article provides: "When examining the requirements of paragraph (1), the court shall take into account whether, and to what extent, the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees" (Civil Procedure Act, Article 217-2). The distinction between these two texts creates the standard of judgment. The limitation on the recognition of damages means the statutory limit with respect to a result manifestly contrary to the basic order, and whether, and to what extent, the costs included in the calculation of the amount are included is merely a circumstance to be considered when examining that limit, and not a ground for refusal of recognition in itself. Recognition can be refused only once the requirement is satisfied, and a judgment that considers the circumstances is subordinate to the examination of the requirement.
The counterargument most strongly raised against this standard is the concern that excessive damages may be executed against domestic property. The point that, if the foreign determination is respected as it stands, the right of defense and public order of domestic parties may not be sufficiently protected also supports this concern. The loss that debtor B may lose domestic property is concrete, and if litigation costs recognized abroad are themselves included in the amount of damages, the burden grows further. Yet even without erasing the disadvantage urged by the counterargument, the conclusion does not change. A manifest violation of the basic order cannot be established on the basis of the size of the amount alone, and the scope of inclusion of litigation costs that paragraph (2) of the same Article directs to be considered holds its place only within the examination of the requirements of paragraph (1).
If that document is confirmed to be an arbitral award, it must be determined afresh which route and basis between the execution judgment and the execution decision are to be applied. If the character of the document held by creditor A changes from a foreign judicial document to an arbitral award, then, as this sentence provides, the existing determinations of blocking and of effect are discarded, and adjudication begins anew from the stage of domestic recognition and enforcement of the external determination. If that document is confirmed to be an arbitral award, which recognition rules apply cannot be determined and therefore remains undetermined. The parts in which the materials necessary for the applicable treaty and its reservations and for the grounds for refusal of recognition have not been confirmed remain undetermined.
Accordingly, recognition cannot be refused merely because the foreign damages award is large, and the limitation on the recognition of damages operates only when the statutory requirement of a result manifestly contrary to the basic order and the consideration of the scope of costs within its examination are placed together. A determination that justifies refusal on the basis of the size of the amount alone, without confirmation that the requirements are satisfied, is a conclusion this position does not permit; conversely, once satisfaction of the requirements is confirmed, recognition may be refused in whole or in part.
4.6The Strongest Counterargument and the Answer
[Main Text] When one considers that a foreign damages judgment of a large amount may be executed in Korea, it is difficult to dispel the impression that the domestic party's property may be lost all at once. The conclusion was that compulsory execution in Korea of a foreign judgment requires an execution judgment, and that the procedure is not a trial on the merits that re-examines the rightness or wrongness of the decision. In this scene, the question remains whether cross-border relief can be blocked by the impression of largeness alone.
The statutory standard for this question is Article 217-2 of the Civil Procedure Act. The subject concerned here is the court that decides in the procedure seeking recognition; the object is a final judgment, etc. concerning damages; and the condition of decision is the bringing about of a result that manifestly contravenes the basic order.
Article 217-2 of the Civil Procedure Act adds, in paragraph (2) of the same Article, that when the court examines the requirements of paragraph (1), it shall consider whether the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees, and the extent thereof. Amount and costs are elements to be examined in the inquiry, but they do not in themselves amount to a manifest violation of the basic order. This is why the two stages of decision must be separated. One is the task of confirming whether costs are included and their extent; the other is the task of deciding whether the confirmed content brings about a result that manifestly contravenes the basic order. Accordingly, a manifest violation of the basic order cannot be established on the basis of the size of the amount alone.
One may then ask whether this means that it is right not to worry that, if the foreign damages amount is large, it can be recovered from property in Korea. In fact, if a large amount is executed, the domestic party suffers a loss that is difficult to bear, and if the scope of those costs is added as well, the burden may become greater. Such inconvenience and loss must not be disregarded. However, that concern must be addressed at the point of deciding whether the confirmed conditions bring about a result that manifestly contravenes the basic order. The conclusion that a manifest violation of the basic order cannot be established on the basis of the size of the amount alone observes the order of that decision; it does not erase the possibility of loss.
What can be confirmed in this scene is the fact that Creditor A seeks to execute against the property in Korea of Debtor B on the basis of a foreign court document. Whether the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees, and what that scope is, have not yet been confirmed. That scope is not fixed either, and whether the confirmed scope brings about a result that manifestly contravenes the basic order cannot be decided on this scene alone. Accordingly, the remaining matters are left undetermined, and only the conditions needed to apply the distinction drawn earlier are set side by side.
The conclusion permitted in this section is that a manifest violation of the basic order cannot be established on the basis of the size of the amount alone. Conversely, the conclusion that recognition may be refused on the sole fact that the amount is large is not permitted by this section. The restriction on the recognition of damages, as the statutory limit upon results that manifestly contravene the basic order, operates where its conditions are met.
4.7The Link to the Application and the Dispositive Part
Taking up the conclusion of the preceding section that a manifest violation of the basic order cannot be established on the basis of the size of the amount alone, this section now addresses the question whether recognition is to be refused whenever a foreign damages amount is large. The issue is whether the domestic court must refuse recognition on the mere impression that the amount of damages stated in that foreign court document is not small.
Article 217-2 of the Civil Procedure Act is the provision governing the recognition of a final judgment, etc. concerning damages. Paragraph (1) thereof provides: "Where a final judgment, etc. concerning damages would result in a manifest violation of the basic order of the laws of the Republic of Korea or of international treaties to which the Republic of Korea is a party, the court may not recognize all or part of the relevant final judgment, etc." Here the subject is the domestic court, the object is a final judgment, etc. concerning damages, and the condition is the case where a result manifestly contravening the basic order of domestic laws or international treaties is brought about.
Paragraph (2) provides: "Where the court examines the requirements of paragraph (1), it shall consider whether the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees, and the extent thereof" (Article 217-2 of the Civil Procedure Act). These two paragraphs distinguish the stages of decision. First, paragraph (1) fixes the limit of a result manifestly violating the basic order, and paragraph (2) designates what is to be considered when those requirements are examined, namely whether and to what extent litigation costs are included. Whether litigation costs are included in the amount of damages, and the extent thereof, are matters for examination in the assessment of manifestness; they are not a separate requirement standing as a ground for refusal of recognition in the absence of manifestness. If this distinction is missed, items to be considered in the examination are transformed into independent requirements for refusal of recognition, thereby going beyond the limit of paragraph (1).
As for Debtor B, since the entire amount of damages recognized abroad may lead to execution against his property in Korea, the protection of the right of defense and public policy is insufficient, and the loss of paying money or losing property actually remains. The fact that the court, when assessing the requirement of manifestness within the scope of the conclusion of this section, does not hasten to establish it on the basis of the size of the amount alone does not make disappear the inconvenience of execution against domestic property pointed out by the counterargument; the limit of viewing, according to the statutory standard, the result manifestly contravening the basic order of domestic laws and international treaties and the scope of inclusion of litigation costs is maintained.
In the synthetic scene, only the following fact is stipulated: that Creditor A seeks to execute against Debtor B's property in Korea on the basis of a foreign court document. The size of the damages amount stated in that court document, whether the scope of damages recognized by the foreign court included litigation costs and expenses such as attorney's fees, and the extent thereof, are not confirmed. Nor are the year and the amount set, so the size of the amount cannot be stated as a confirmed fact. Therefore, on this scene alone it cannot be established whether a result manifestly contravening the basic order has been brought about, and whether recognition is to be granted remains undetermined.
Accordingly, the conclusion of refusing recognition on the mere impression that the foreign damages amount is large is not permitted, while the conclusion that recognition may be restricted as a result of deciding, by the statutory standard, the result manifestly contravening the basic order of domestic laws and international treaties and the scope of inclusion of litigation costs is permitted. Here, the restriction on the recognition of damages means the statutory limit upon results that manifestly contravene the basic order, and it cannot be extended to mean that recognition may be refused beyond that limit.
4.8The Scope This Section Undertakes
On the premise that Creditor A seeks to execute against the property in Korea of Debtor B on the basis of a foreign court document, compulsory execution in Korea of a foreign judgment requires an execution judgment, and the procedure is not a trial on the merits that re-examines the rightness or wrongness of the decision. On that premise set out earlier, this section addresses the question whether recognition is always refused when a foreign damages amount is large. Since the execution judgment procedure is not a re-examination on the merits, the court may examine only the presence or absence of the stipulated grounds for recognition. The standard of determination corresponding to this question is to view, according to the statutory standard, the result manifestly contravening the basic order of domestic laws and international treaties and the scope of inclusion of litigation costs.
Paragraph (1) thereof provides: "Where a final judgment, etc. concerning damages would result in a manifest violation of the basic order of the laws of the Republic of Korea or of international treaties to which the Republic of Korea is a party, the court may not recognize all or part of the relevant final judgment, etc." (Article 217-2 of the Civil Procedure Act). Here the subject is the court before which recognition is sought domestically, the object is a final judgment, etc. concerning damages, the act is the recognition of all or part, and the condition is the case where a result manifestly contravening the basic order of the laws of the Republic of Korea or of international treaties to which the Republic of Korea is a party is brought about. Once the conditions are met, the court may not recognize, so that room for recognition is closed. This wording, however, only fixes the requirements for refusal of recognition; it does not at the same time provide other grounds for recognition or requirements for execution.
The link joining the wording of paragraph (1) to the conclusion is paragraph (2), which sets the standard of examination alongside it. This is because, when the court examines the same requirements, it shall consider whether the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees, and the extent thereof (Article 217-2 of the Civil Procedure Act). Why must these two paragraphs be distinguished? Paragraph (1) fixes the manifestness of the result that bars recognition, and paragraph (2) fixes what is to be examined when that manifestness is decided. Accordingly, the determination divides into two stages. First, it is settled whether there is a result that manifestly contravenes the basic order, and in that examination the inclusion and scope of litigation costs are considered. The restriction on the recognition of damages spoken of here means the statutory limit upon results that manifestly contravene the basic order, and that limit is bound not to the mere abundance or meagerness of the amount but to the requirement of manifestness.
The strongest of the counterarguments arises from the concern that excessive damages may be executed against domestic property. If foreign determinations are respected as they stand, Debtor B's property in Korea will be drained to the extent of the large sum, and there is the worry that the debtor's right of defense and domestic public policy may not be sufficiently protected. This concern is directed at concrete loss, namely the diminution of domestic property and the ensuing inconvenience and impairment of value. The adverse aspect of the counterargument is not erased either. If recognition is granted, the way is opened for execution against domestic property, so the possibility of loss spoken of by the counterargument does not disappear. The answer, however, is maintained within the set scope. A manifest violation of the basic order cannot be established on the basis of the size of the amount alone, and the court shall examine the requirement of a result that manifestly contravenes the basic order and, in that examination, consider the scope of inclusion of litigation costs. The concern of the counterargument is a share to be dealt with through the examination of the requirements; it does not become a separate ground of blockage going beyond the fixing of the requirements.
The only fact confirmed in the synthetic scene is that Creditor A seeks to execute against the property in Korea of Debtor B on the basis of a foreign court document. Comparing this fact with the foregoing conditions, it meets the premise that compulsory execution in Korea of a foreign judgment requires an execution judgment and that the procedure is not a trial on the merits. The scene, however, does not determine how large the foreign damages amount is, whether the foreign court placed costs and expenses related to the lawsuit, including attorney's fees, within the scope of damages, and whether such a result manifestly contravenes the basic order of the laws of the Republic of Korea or of international treaties to which the Republic of Korea is a party. Nor does it set the year or the amount. Therefore, on this scene alone the establishment of grounds for recognition cannot be determined, and the determination is limited to the conditional distinction expressly stated. If that document is confirmed to be an arbitral award, which route and basis, as between an execution judgment and an execution order, is to be applied must be determined anew, so no result can be stated on the present scene alone.
The conclusion this section permits is narrow. Recognition must not be refused on the mere impression that the foreign damages amount is large; the court shall examine the requirement of a result manifestly contravening the basic order and, in that examination, consider whether and to what extent costs and expenses related to the lawsuit are included. The conclusion not permitted is equally clear. Establishing a manifest violation of the basic order on the basis of the size of the amount alone, or refusing recognition without undergoing the examination of the requirements, lies outside this section. That materials are lacking means undetermined, and not immediate inability to obtain relief.
4.9Application of the Text of the Provisions and the Holdings of Precedents
What the preceding stage confirmed is that compulsory execution in Korea of a foreign judgment requires an execution judgment, and that the procedure is not a trial on the merits that re-examines the rightness or wrongness of the decision. On the premise of that conclusion, this place addresses the question whether recognition is always refused when a foreign damages amount is large, and the scope of application of the wording that will serve as the ground for that decision.
The wording in question, Article 217-2 of the Civil Procedure Act, provides: "Where a final judgment, etc. concerning damages would result in a manifest violation of the basic order of the laws of the Republic of Korea or of international treaties to which the Republic of Korea is a party, the court may not recognize all or part of the relevant final judgment, etc.", and then adds: "Where the court examines the requirements of paragraph (1), it shall consider whether the scope of damages recognized by the foreign court includes costs and expenses related to the lawsuit, including attorney's fees, and the extent thereof." Here the requirement the court shall examine is the bringing about of a result manifestly contravening the basic order, and what is specified as the subject of consideration is whether costs and expenses related to the lawsuit are included in the scope of damages recognized by the foreign court, and the extent thereof. This wording presents together the ground for the judgment that recognition may not be granted and the circumstances to be considered upon examination.
When this wording is applied to the domestic recognition and enforcement of an external determination, the stage of the judgment that recognition may not be granted and the scope of application of the wording that will serve as the ground for that judgment must both be weighed. The restriction on the recognition of damages, so far as concerns recognition, means the statutory limit upon results that manifestly contravene the basic order; the wording concretizes it by providing that, when examining results falling within that limit, whether costs and expenses of the lawsuit are included within the scope of damages recognized by the foreign court shall be considered. Then, combined with the standard that cross-border relief must not be blocked by the mere impression of a large amount, the result manifestly contravening the basic order of domestic laws and international treaties and the scope of inclusion of litigation costs are viewed according to the statutory standard.
When Creditor A seeks execution against Debtor B's property in Korea on the basis of a foreign court document, in so far as that scope burdens B, the point is raised that the domestic party's right of defense and public policy may not be sufficiently protected. Nevertheless, the structure of the relevant wording has separated the subject of examination from the subject of consideration. As with the conclusion in the preceding section, so long as this procedure is not a trial on the merits re-examining the rightness or wrongness of the decision, even so a manifest violation of the basic order cannot be established on the basis of the size of the amount alone. The wording only requires that whether and to what extent costs and expenses related to the lawsuit are included be considered; it does not make the size of the amount by itself a requirement for refusal of recognition.
The only facts confirmed in this scene are that Creditor A holds a foreign court document, that he seeks execution against Debtor B's property in Korea, and that the wording presented as the ground for that decision is Article 217-2 of the Civil Procedure Act. Applying that wording to the external determination in this scene, whether a result manifestly contravening the basic order is brought about and the scope of inclusion of litigation costs and expenses become the subject of the stipulated examination. The scene, however, does not determine in what procedure that foreign court document was rendered, what the state of service and appearance and finality is, and whether litigation costs and expenses were actually included within the scope of damages. Those items are unverified, and the decision in this section is limited to the conditional distinction expressly stated.
What this section permits is the distinction of taking only the relevant source-text wording as the ground of adjudication for the domestic recognition and enforcement of an external determination, and of applying only the wording within that scope. Going beyond the violation of the basic order and the consideration of the scope of litigation costs fixed by the wording — refusing recognition on the large amount alone, or widening the judgment by extending to matters other than the reasons for the judgment — is not permitted by this section.
4.10Fine Distinctions Within the Stage
한편 앞 분석 단계의 결론으로는 외국재판의 국내 강제집행에는 집행판결이 필요하고 그 절차는 재판의 옳고 그름을 다시 심리하는 본안 재판이 아니다. 이 장면에서 큰 금액이라는 인상만으로 국경을 넘는 구제를 차단해서는 안 된다는 점이 앞서 확인된 바와 맞물린다. 이 물음에 답하려면 승인 심리 안에서 무엇을 따로 나누어 살펴보는지부터 정해야 한다. 이 절은 그 세부 구분의 범위만을 다룬다.
이 물음에 해당하는 원문은 국내 법률·국제조약의 기본질서에 현저히 반하는 결과와 소송비용 포함 범위를 법정 기준대로 보도록 한다. 이 문언에서 심리의 주체는 법원이고, 그 대상은 손해배상에 관한 확정재판등이며, 판단의 조건은 현저히 반하는 결과의 초래다. 승인 배제의 범위는 전부 또는 일부로 열려 있어 부분 승인과 부분 거부가 함께 규정되어 있다.
제2항은 제1항의 요건을 심리할 때 "외국법원이 인정한 손해배상의 범위에 변호사보수를 비롯한 소송과 관련된 비용과 경비가 포함되는지와 그 범위를 고려하여야 한다"고 덧붙인다(민사소송법 제217조의2). 이 두 항의 구분이 왜 필요한지 살펴보면, 기본질서 위반의 확정과 비용 포함 범위의 고려는 별개의 판단 단계에 놓여 있다. 즉 적용 체계·승인 조건·국내 집행 허가를 갖추면 그 경로가 작동하고, 승인 필수 요건이 없거나 법정 승인 거절사유가 인정되면 막히며, 필요한 자료가 확인되지 않으면 미확정으로 남는다.
가장 강한 반론은 과도한 배상이 국내 재산에 집행될 수 있다는 우려다. 이 우려는 외국의 배상액이 국내 채무자 B의 재산을 잠식할 수 있다는 점, 그리고 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 점을 함께 겨눈다. 저자가 파악하기에 제217조의2는 금액 자체를 기준으로 삼지 않고 기본질서에 현저히 반하는 결과를 요건으로 삼으며, 비용과 경비의 포함 여부와 범위를 고려하도록 한다. 반론이 지적하는 손실의 가능성은 사라지지 않지만, 그 가능성만으로 승인 배제가 확정되지는 않는다는 경계는 유지된다.
이 장면과 관련된 사실은 채권자 A가 외국의 재판문서를 가지고 있고, 국내에 있는 채무자 B의 재산을 대상으로 집행을 구한다는 점이다. 이 사실만으로 재판 또는 판정 정본·확정·송달과 응소·적용 협약·승인 사유·집행판결 또는 결정 가운데 어느 기록이 확보되었는지는 확인되지 않는다. 따라서 외국재판 또는 중재판정의 적용 체계·승인 조건·국내 집행 허가를 갖춘 경우로 볼 수 있는지, 아니면 승인 필수 요건이 결여된 경우에 해당하는지 판정할 수 없다.
이 절이 허용하는 결론은 좁다. 기본질서에 현저히 반하는 결과라는 법정 한계와 소송비용 포함 범위라는 심리 항목을 구별하여 보고, 그 구별 안에서 작동·차단·미확정의 조건만을 나누어 판정한다는 것이다. 금액의 크기를 그 자체로 승인 배제의 사유로 삼는 결론, 또는 기록이 확인되지 않았다는 이유만으로 곧바로 구제 불능으로 돌리는 결론은 이 절이 허용하지 않는다.
4.11Synthesis of Effectiveness, Blockage, and Undetermination
앞선 논증을 다시 펼치지 않은 채, 채권자 A는 외국의 재판문서를 가지고 국내에 있는 채무자 B의 재산에 집행하려 한다는 장면에서 외국 배상액이 크면 언제나 승인을 거부하는가라는 물음을 세운다. 이 물음은 외부 판단의 국내 승인과 집행을 열고 막고 미확정으로 나누는 기준이 무엇인지를 정하는 첫 단계이다.
이 물음에 해당하는 문언은 민사소송법 제217조의2에 있다. 그 ①항은 손해배상에 관한 확정재판등이 대한민국의 법률 또는 대한민국이 체결한 국제조약의 기본질서에 현저히 반하는 결과를 초래할 경우에 해당 확정재판등의 전부 또는 일부를 승인할 수 없다고 정한다. ②항은 법원이 제1항의 요건을 심리할 때 외국법원이 인정한 손해배상의 범위에 변호사보수를 비롯한 소송과 관련된 비용과 경비가 포함되는지와 그 범위를 고려하여야 한다고 덧붙인다. 여기서 주체는 법원이고, 행위는 승인 여부의 판단이며, 조건은 기본질서에 현저히 반하는 결과의 초래이다.
판정은 셋으로 나뉜다. 열리는 경우는 외국재판 또는 중재판정의 적용 체계와 승인 조건, 국내 집행 허가를 함께 갖춘 경우이고, 막히는 경우는 외국재판의 승인 필수 요건이 없거나 해당 중재판정의 법정 승인 거절사유가 인정되어 국내 집행 허가를 받을 수 없는 경우이다. 미확정은 적용 협약과 유보 또는 승인 요건에 필요한 자료가 확인되지 않은 경우로 둔다. 이 구분을 나누는 이유는 제217조의2가 정한 배상 승인 제한, 곧 기본질서에 현저히 반하는 결과에 대한 법정 한계가 승인의 문을 닫는 사유이지 자료가 비어 있는 상태를 뜻하지 않기 때문이다.
이 구별에 대한 가장 강한 반론은 과도한 배상이 국내 재산에 집행될 수 있다는 우려이다. 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 걱정도 함께 놓인다. 법원은 소송과 관련된 비용과 경비의 포함 여부와 범위를 함께 고려하여야 하므로, 금액의 인상만으로 승인 거부를 확정하는 것은 정한 기준에 어긋난다. 물론 반론이 지적한 불편은 사라지지 않으며, 다만 그 불편을 금액만의 사유로 옮겨 적지 않는다.
합성 장면에서 확인되는 사실은 채권자 A가 외국의 재판문서를 가지고 채무자 B의 국내 재산에 집행하려 한다는 점뿐이다. 이를 앞의 판정 조건에 견주면, 그 재판문서가 손해배상에 관한 확정재판등에 해당하는지, 적용 협약과 그 유보가 무엇인지, 승인 요건에 필요한 자료가 채워졌는지는 정해져 있지 않다. 따라서 이 장면만으로는 실효와 차단 가운데 어느 쪽이라고 단정할 수 없고, 미확정의 자리에 남는다. 만약 해당 문서가 외국재판이 아니라 중재판정으로 확인되면 집행판결과 집행결정 가운데 적용할 경로와 근거를 다시 가려야 하며 이는 이 장면에서 확정된 사실이 아니다.
이 절이 허용하는 것은 조건부 구별이다. 적용 체계·승인 조건·국내 집행 허가가 함께 갖춰지면 그 길이 열리고, 승인 필수 요건이 없거나 법정 승인 거절사유가 인정되어 허가를 받을 수 없으면 막힌다. 허용하지 않는 것은 금액의 크기만으로 현저한 기본질서 위반을 확정하는 것과, 자료가 비어 있다는 사실을 곧바로 구제 불능으로 옮기는 것이다.
4.12Conclusion Carried Over to the Next Section
앞서 외부 판단의 국내 승인과 집행은 필요한 요건과 자료가 갖추어진 경우 작동하고, 요건이 없거나 정해진 사유가 인정되는 경우에는 막히며, 자료가 확인되지 않은 경우에는 미확정으로 남는다고 보았다. 그런 기초 위에서 채권자 A는 외국의 재판문서를 가지고 국내에 있는 채무자 B의 재산에 집행하려는 장면을 이어서 생각할 때, 외국 배상액이 크면 언제나 승인을 거부하는가라는 물음이 남는다. 이 물음은 국내 법률·국제조약의 기본질서에 현저히 반하는 결과와 소송비용 포함 범위를 법정 기준대로 보는 작업을 통해 정리된다.
이 절이 다루는 문언은 민사소송법 제217조의2이다. 제2항은 법원이 제1항의 요건을 심리할 때에는 외국법원이 인정한 손해배상의 범위에 변호사보수를 비롯한 소송과 관련된 비용과 경비가 포함되는지와 그 범위를 고려하여야 한다고 정한다. 여기서의 주체는 승인을 구하는 재판을 심리하는 법원이고, 대상은 손해배상에 관한 확정재판등이며, 조건은 그 결과가 기본질서에 현저히 반하는 경우이다.
이 문언이 다루는 단계는 배상 승인 제한, 곧 기본질서에 현저히 반하는 결과에 대한 법정 한계를 가리는 단계이다. 금액의 인상이 아니라 기본질서에 현저히 반하는 결과가 기준이고, 그 판단에서 소송비용 포함 범위를 고려하도록 별도의 심리 사항으로 두었다. 두 요소를 구별해야 하는 까닭은, 제1항은 승인할 수 없는 결과를 정하고 제2항은 그 요건을 심리할 때 무엇을 들여다보는지를 정하기 때문이다. 소송비용이 배상 범위에 포함되는지와 그 범위는 요건 심리의 고려 대상일 뿐, 그 자체로 승인 거부의 사유가 되는 것은 아니다.
채무자 B의 국내 재산이 외국의 판단에 따라 실제로 빠져나가고, 그런 집행이 국내 당사자의 방어권이나 공서에 어긋나는 인상을 남길 수 있다는 점에서 이 우려는 가볍지 않다. 외부 판단을 존중하면 국내 당사자의 방어권과 공서가 충분히 보호되지 않을 수 있다는 지적도 같은 방향을 가리킨다. 그렇다고 하여 이 우려를 이유로 금액의 크기만으로 현저한 기본질서 위반을 확정할 수는 없다. 법정 기준은 기본질서에 현저히 반하는 결과에 있고, 큰 금액이라는 인상은 그 자체로 그 결과를 확정하지 못한다.
이 절이 정하는 조건을 장면에 놓고 보면, A가 가져온 외국의 재판문서에 담긴 손해배상 범위에 변호사보수를 비롯한 소송과 관련된 비용과 경비가 포함되는지와 그 범위는 요건 심리에서 고려될 사항에 해당한다. 그러나 B의 재산에 대한 집행까지 실제로 허가되는지, 그리고 그 결과가 국내 법률 또는 국제조약의 기본질서에 현저히 반하는지에 대한 판단은 이 장면의 사실만으로 확정되지 않는다. 장면에 연도나 금액, 판결 결과가 따로 설정되지 않았으므로, 승인 판단에 필요한 자료가 더 확인되지 않은 경우에는 앞서 본 대로 미확정으로 남는다.
이 절이 허용하는 결론은 외국 배상액이 크다는 사실을 법정 기준 없이 승인 거부의 사유로 삼지 않는 것이고, 기본질서에 현저히 반하는 결과와 소송비용 포함 범위를 법정 기준대로 보는 것이다. 반대로 이 절이 허용하지 않는 결론은 금액의 크기만으로 현저한 기본질서 위반을 확정하는 것과, 요건 심리에서 고려하도록 정한 소송비용 범위를 그 자체로 승인 거부의 근거로 바꾸는 것이다. 여기까지를 넘어 이 장면의 실제 이행 결과까지 단정할 수도 없다. 중재판정은 법원 판결과 같은 방식으로 집행하는가?