최근 우리나라의 경제가 발달함에 따라 우리나라 국민이 외국인과 경제활동을 하는 경우가 급증하고 있다. 또한 세계화의 진전으로 우리나라 국민이 외국인과 혼인 등 신분관계를 형성하는 경우도 늘고 있다. 국제거래나 혼인 등 이른바 섭외적 생활관계에서 분쟁이 발생하였을 때 그 분쟁의 해결에 적용될 준거법을 정하는 것이 국제사법이다. 이 책은 국제사법을 적용한 국내 판례의 간략한 내용을 최근 판례를 중심으로 수록하여서 국제사법 규정의 이해에 도움이 되도록 하였다.
이번 개정에서는 2015년 이후의 최근 판례를 추가하고, 일부 서술 부분을 수정 또는 보완하였다.


차 례

제1편 총 론
∥제1장∥ 섭외적 법률관계와 국제사법 / 3
제1절 국제사법의 필요성 ···················································································· 3
제2절 섭외적 법률관계 ······················································································· 4
제3절 통일법을 통한 섭외적 법률관계의 규율 ·················································· 6
∥제2장∥ 국제사법 일반론 / 8
제1절 국제사법의 정의 및 기능 ········································································· 8
제2절 국제사법의 본질 ······················································································· 9
제3절 국제사법의 특징 ····················································································· 10
Ⅰ. 간접규범 / 10 Ⅱ. 상위규범 / 11 Ⅲ. 강행규범 / 11
제4절 국제사법의 명칭 ····················································································· 12
제5절 국제사법의 범위 ····················································································· 13
Ⅰ. 의 의 / 13 Ⅱ. 국제민사소송법과의 관계 / 14
Ⅲ. 국적법과의 관계 / 14 Ⅳ. 외인법과의 관계 / 14
Ⅴ. 준국제사법 및 인제사법과의 관계 / 15 Ⅵ. 시제법과의 관계 / 16
∥제3장∥ 국제사법의 발전 / 18
제1절 서 설 ··································································································· 18
제2절 로마시대 ·································································································· 19
제3절 중세시대 ·································································································· 20
Ⅰ. 종족법시대 / 20 Ⅱ. 봉건시대 / 20 Ⅲ. 법규분류학파 / 21
제4절 근세시대 ·································································································· 21
Ⅰ. 프랑스 법규분류학파 / 21 Ⅱ. 네덜란드학파 / 22 Ⅲ. 독일학파 / 23
제5절 미국에서의 국제사법이론의 발전 ··························································· 25
Ⅰ. 예양이론과 기득권이론 / 25 Ⅱ. 기득권이론에 대한 비판 / 26
Ⅲ. 국제사법이론의 혁명 / 28 Ⅳ. 가치기준의 접근방법 / 31
Ⅴ. 법의 충돌에 관한 제2차 리스테이트먼트 / 34 Ⅵ. 미국 국제사법이론의 평가 / 35
∥제4장∥ 국제사법의 이념 / 36
제1절 서 설 ··································································································· 36
제2절 가장 밀접한 관련의 원칙 ······································································· 36
제3절 실질법적 정의 ························································································· 38
∥제5장∥ 우리나라 국제사법 / 39
제1절 연혁 및 기본구조 ··················································································· 39
제2절 규정방식 및 원칙 ··················································································· 39
제3절 국제사법의 특징 ····················································································· 40
Ⅰ. 법 명칭의 변경 / 40
Ⅱ. 법 체제의 완결성 제고 / 41
Ⅲ. 가장 밀접한 관련의 원칙의 채택 / 41
Ⅳ. 당사자자치의 원칙의 포괄적 수용 / 41
Ⅴ. 실질법적 정의의 고려 / 42
Ⅵ. 국제재판관할에 관한 규정의 도입 / 42
Ⅶ. 국제사법 관련 국제조약의 수용 / 43

제2편 국제사법 총칙
∥제1장∥ 서 론 / 47
∥제2장∥ 국제재판관할 / 48
제1절 서 설 ··································································································· 48
제2절 국제재판관할권 ······················································································· 49
Ⅰ. 의 의 / 49
Ⅱ. 국제재판관할권의 확정에 관한 입장 / 50
Ⅲ. 국제재판관할권의 근거 / 52
Ⅳ. 미국 재판관할확대법과 이에 대한 제한 / 57
Ⅴ. 국제재판관할과 비편의법정원칙 / 59
Ⅵ. 국제재판관할과 주권면제원칙 / 60
Ⅶ. 국제사법에서 국제재판관할권의 확정 / 61
제3절 외국판결의 승인 및 집행 ······································································· 70
Ⅰ. 의 의 / 70
Ⅱ. 유럽에서 외국판결의 승인 및 집행 / 72
Ⅲ. 미국에서 외국판결의 승인 및 집행 / 74
Ⅳ. 우리나라에서 외국판결의 승인 및 집행 / 75
∥제3장∥ 준거법의 지정 / 89
제1절 서 설 ··································································································· 89
제2절 국제사법 규정의 구조 ············································································ 89
Ⅰ. 국제사법 규정의 유형 / 89 Ⅱ. 국제사법 규정의 흠결 / 91
제3절 법률관계의 성질 결정 ············································································ 92
Ⅰ. 의 의 / 92
Ⅱ. 법률관계의 성질 결정의 준거법 / 93
Ⅲ. 법률관계의 성질 결정과 관련된 문제 / 96
제4절 연결점과 연결방법 ················································································ 102
Ⅰ. 의 의 / 102 Ⅱ. 연결점의 형태와 준거법 / 104
Ⅲ. 연결개념으로서의 국적 / 107 Ⅳ. 준거법의 연결방법 / 112
∥제4장∥ 선결문제 / 117
제1절 서 설 ································································································· 117
제2절 선결문제에 적용되는 준거법 선택의 원칙 ··········································· 117
제3절 본문제의 준거법과 선결문제의 준거법 간의 관계 ······························ 120
∥제5장∥ 외국법의 적용 / 122
제1절 서 설 ································································································· 122
제2절 외국법의 성질 ······················································································· 122
Ⅰ. 학 설 / 122 Ⅱ. 국제사법 규정 / 124
제3절 외국법의 흠결 또는 불분명 ·································································· 125
Ⅰ. 의 의 / 125 Ⅱ. 학 설 / 126
제4절 적용되는 외국법의 범위 ······································································· 128
Ⅰ. 실질사법 / 128
Ⅱ. 외국에서 현실로 적용되는 법 / 129
Ⅲ. 미승인국 및 분단국의 법률 / 129
제5절 외국법의 해석 및 적용 ········································································· 130
제6절 외국법 적용의 오류 ·············································································· 132
∥제6장∥ 법정지국 강행규정의 적용 / 133
제1절 서 설 ································································································· 133
제2절 우리나라 강행규정의 적용 ···································································· 134
∥제7장∥ 예외조항 / 136
제1절 서 설 ································································································· 136
제2절 예외조항의 규정방식 ············································································· 137
제3절 예외조항의 필요성 ················································································ 138
제4절 예외조항의 적용기준 ············································································· 139
제5절 예외조항의 적용범위 ············································································· 141
∥제8장∥ 반 정 / 144
제1절 서 설 ································································································· 144
제2절 반정이론 ································································································ 146
Ⅰ. 반정긍정론 / 146 Ⅱ. 반정부정론 / 149
제3절 반정의 유형 ·························································································· 151
Ⅰ. 직접반정 / 151 Ⅱ. 전 정 / 151
Ⅲ. 간접반정 / 152 Ⅳ. 이중반정 / 152
Ⅴ. 숨은 반정 / 153
제4절 국제사법에서 반정조항 ········································································· 155
Ⅰ. 적용요건 / 155
Ⅱ. 예외적으로 반정이 허용되지 않는 경우 / 157
∥제9장∥ 공서조항 / 161
제1절 서 설 ································································································· 161
제2절 공서조항의 규정방식 ············································································· 162
Ⅰ. 배척조항과 유보조항 / 162
Ⅱ. 일반배척조항과 특별배척조항 / 162
제3절 국제사법에서 공서조항 ········································································· 163
Ⅰ. 국제사법 규정 / 163 Ⅱ. 공서조항의 적용 / 163 Ⅲ. 내부지향의 경향 / 169
제4절 외국법 적용 배척에 따른 법의 보충 ··················································· 170
Ⅰ. 외국법 적용의 배척과 내국법의 적용 / 170
Ⅱ. 내국법적용의 범위 / 171
제5절 공서조항과 예외조항 ············································································· 172
∥제10장∥ 법률회피 / 174
제1절 서 설 ································································································· 174
제2절 법률회피의 효력 ··················································································· 175
제3절 법률회피와 법정지쇼핑 ········································································· 176
제4절 법률회피와 편의치적 ············································································· 176
제5절 법률회피와 조세회피 ············································································· 177
∥제11장∥ 준거법 적용에서 발생하는 문제 / 178
제1절 법규의 중첩 및 흠결 ·········································································· 178
Ⅰ. 의 의 / 178 Ⅱ. 해결방법 / 179
제2절 법률관계의 대체 ··················································································· 180
제3절 준거법의 변경에 따른 권리나 신분의 내용의 치환 ···························· 181
제4절 외국 실체법과 내국 절차법의 부조화 ·················································· 182
제5절 총괄준거법과 개별준거법의 부조화 ······················································ 183

제3편 국제사법 각칙
∥제1장∥ 서 론 / 187
∥제2장∥ 국제민법총칙 / 188
제1절 자연인 ··································································································· 188
Ⅰ. 권리능력의 준거법 / 188 Ⅱ. 실종선고 / 190
Ⅲ. 행위능력 / 194 Ⅳ. 한정후견 및 성년후견 / 196 Ⅴ. 거래보호에 관한 규정 / 198
제2절 법인 및 단체 ························································································· 201
Ⅰ. 의 의 / 201
Ⅱ. 준거법 선택의 원칙 / 201
Ⅲ. 준거법의 적용범위 / 203
Ⅳ. 권리능력 없는 사단 또는 재단 / 206
Ⅴ. 법인에 대한 외인법의 적용 / 206
제3절 법률행위 ································································································ 208
Ⅰ. 의 의 / 208 Ⅱ. 법률행위의 실질의 준거법 / 208 Ⅲ. 법률행위의 방식의 준거법 / 214
∥제3장∥ 국제물권법 / 219
제1절 서 설 ································································································· 219
제2절 물권에 관한 준거법 ·············································································· 221
Ⅰ. 준거법 선택의 일반원칙 / 221 Ⅱ. 준거법의 적용범위 / 222
Ⅲ. 물건의 소재지 변경과 준거법 / 229 Ⅳ. 지식재산권의 준거법 / 234
∥제4장∥ 국제채권법 / 237
제1절 계 약 ································································································· 237
Ⅰ. 의 의 / 237 Ⅱ. 당사자자치의 원칙 / 238 Ⅲ. 준거법 선택의 원칙 / 243
제2절 법정채권 ································································································ 266
Ⅰ. 의 의 / 266 Ⅱ. 사무관리 / 266
Ⅲ. 부당이득 / 270 Ⅳ. 불법행위 / 273
제3절 채권·채무관계 ····················································································· 285
Ⅰ. 의 의 / 285 Ⅱ. 채권의 목적 / 285
Ⅲ. 채권의 소멸 / 286 Ⅳ. 채권의 대외적 효력 / 287
Ⅴ. 채권 또는 채무의 이전 / 289
∥제5장∥ 국제친족법 / 295
제1절 서 설 ································································································· 295
제2절 약 혼 ································································································· 295
Ⅰ. 의 의 / 295 Ⅱ. 약혼의 준거법 / 296
제3절 혼 인 ································································································· 297
Ⅰ. 의 의 / 297 Ⅱ. 혼인의 성립 / 297
Ⅲ. 혼인의 효력 / 306 Ⅳ. 사 실 혼 / 313
제4절 이 혼 ································································································· 313
Ⅰ. 의 의 / 313 Ⅱ. 이혼의 준거법 / 314 Ⅲ. 별 거 / 319
제5절 친 자 ································································································· 320
Ⅰ. 의 의 / 320 Ⅱ. 친자관계의 성립 / 321 Ⅲ. 친자간의 법률관계 / 333
제6절 부 양 ································································································· 336
Ⅰ. 의 의 / 336 Ⅱ. 준거법의 선택 원칙 / 336 Ⅲ. 준거법의 적용범위 / 340
제7절 그 밖의 친족관계 ·················································································· 341
제8절 후 견 ································································································· 341
Ⅰ. 준거법의 선택 원칙 / 341 Ⅱ. 준거법의 적용범위 / 344
∥제6장∥ 국제상속법 / 345
제1절 상 속 ································································································· 345
Ⅰ. 의 의 / 345 Ⅱ. 준거법의 선택 원칙 / 345 Ⅲ. 준거법의 적용범위 / 348
제2절 유 언 ································································································· 352
Ⅰ. 의 의 / 352
Ⅱ. 유언의 실질적 성립요건과 효력 / 352
Ⅲ. 유언의 방식 / 353
Ⅳ. 유언의 변경 또는 철회 / 354
∥제7장∥ 국제상사법 / 355
제1절 서 설 ································································································· 355
제2절 국제어음·수표법 ·················································································· 356
Ⅰ. 의 의 / 356 Ⅱ. 어음·수표행위능력 / 357
Ⅲ. 수표지급인의 자격 / 358 Ⅳ. 어음·수표행위의 방식 / 359
Ⅴ. 어음·수표행위의 효력 / 361 Ⅵ. 어음·수표에 관한 기타사항 / 363
제3절 국제해상법 ···························································································· 366
Ⅰ. 의 의 / 366 Ⅱ. 해상법 일반 / 367
Ⅲ. 선박충돌 / 369 Ⅳ. 해양사고구조 / 369
∥부록∥ 국제사법 / 373

▨ 판례 색인 / 389
▨ 사항 색인 / 392


저 자 신 창 섭

고려대학교 법과대학, 법학사
고려대학교 대학원 법학과, 법학석사
University of Pennsylvania Law School, LL.M.
George Washington University Law Center, J.D.
University of North Carolina Law School, Visiting Scholar
Duke University Law School, Visiting Scholar
와세다 대학교 교환교수
미국 뉴욕주 변호사
국제거래법학회 부회장
경영법률학회 부회장
안암법학회 부회장
한국중재학회 상임이사
한국중재인연합회 상임이사
미국중재협회(AAA) 국제중재센터(ICDR)
중재인(panel member)
대한상사중재원 중재인
대한상사중재원 국제중재인
교육과학기술부 법학교육위원회 위원장(전)
법무부 국제거래법연구단 위원
법무부 국제법무자문위원회 위원
고려대학교 법학전문대학원 교수