Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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South Korea

Law Amending the Conflict of Laws Act of the Republic of Korea1

Law No 6465, Promulgated on 7 April 2001, Effective as of 1 July 2001

Chapter 1 – General Provisions

Article 1 Purpose

The purpose of this Act is to set forth the principles of international jurisdiction to adjudicate and to determine the governing law in respect of legal relationships with a foreign element.

Article 2 International Jurisdiction to Adjudicate

  • The courts shall have international jurisdiction to adjudicate if the parties or the case in dispute has a substantial connection with the Republic of Korea.

    In determining whether or not such substantial connection exists, the courts shall follow the reasonable principles in conformity with the ideas underlying the allocation of international jurisdiction to adjudicate.

  • The courts shall determine whether or not they have international jurisdiction to adjudicate by reference to the provisions on jurisdiction of domestic laws, having full regard for the special characteristics of international jurisdiction to adjudicate in light of the provisions of paragraph (1).

Article 3 Lex Patriae

  • If, in cases where the lex patriae of a party governs and the party concerned has two or more nationalities, the lex patriae shall be the law of the country with which the party is most closely connected. However, if one of such nationalities is that of the Republic of Korea, the law of the Republic of Korea shall be his lex patriae.

  • In cases where a person has no nationality or it is impossible to ascertain his nationality, the law of the country where he has his habitual residence (hereinafter referred to as the ‘law of habitual residence’) shall govern; if it is impossible to ascertain his habitual residence, the law of the country where he has his residence shall govern.

  • With regard to a national of a country with various local laws, the law designated by the relevant choice of law rules of that country shall govern; if there are no such rules, the law of the local district with which he is most closely connected.

Article 4 Law of Habitual Residence

In cases where the law of habitual residence of the party concerned applies but it is impossible to ascertain the party’s habitual residence, the law of his residence shall govern.

Article 5 Application of Foreign Law

The courts shall examine and apply ex officio the content of the foreign law designated by this Act and may request the parties’ cooperation for this purpose.

Article 6 Scope of the Governing Law

The application of provisions of the foreign law designated as the governing law by this Act shall not be excluded for the sole reason that they are public law in nature.p. 3843

Article 7 Mandatory Application of Korean Law

Provisions of mandatory law of the Republic of Korea, which in view of their legislative purpose must be applied irrespective of the governing law, shall be applicable even if a foreign law is designated as the governing law under this Act.

Article 8 Exception to the Governing Law Designated

  • If the governing law designated by this Act is only slightly connected with the legal relationship concerned, and it is evident that the law of another country is most closely connected with the legal relationship, the law of the other country shall apply.

  • The provisions of paragraph (1) shall not be applicable where the parties have chosen the governing law by agreement.

Article 9 Renvoi in the case of Designation of Governing Law

  • If a foreign law is designated as the governing law under this Act and the law of such country provides that the law of the Republic of Korea shall apply, the law of the Republic of Korea (other than the rules of law determining the governing law) shall be applicable.

  • The provision of paragraph (1) shall not apply in any of the following cases:

    • where the parties have chosen the governing law by agreement;

    • where the law governing the contract is designated by this Act;

    • where the law governing maintenance obligations is designated by the provisions of Article 46;

    • where the law governing the formal requirements of a will is designated by the provisions of paragraph (3) of Article 50;

    • where the law of the country of a ship’s registration is designated by the provisions of Article 60; or

    • where the application of the provision of paragraph (1) is contrary to the purpose of the designation of governing laws under this Act.

Article 10 Provisions of Foreign Law Contrary to Public Order

The application of provisions of a foreign law is excluded if such application would be manifestly incompatible with the good morals and other social order of the Republic of Korea.

Chapter 2 – Persons

Article 11 Capacity to be entitled to Rights

A person’s capacity to be entitled to rights shall be governed by his lex patriae.

Article 12 Declaration of Disappearance

If it is not clear whether a foreigner is alive or dead, the court may issue a declaration of disappearance under the laws of the Republic of Korea only if the person has property in the Republic of Korea, if a legal relationship exists that is governed by the laws of the Republic of Korea or if there is any other legitimate reason therefor.

Article 13 Capacity to Act

  • A person’s capacity to act shall be governed by his lex patriae. The same shall apply where the capacity to act is extended by marriage.

  • A capacity to act that has been previously acquired shall not be deprived or restricted by a change of nationality.

Article 14 Declaration of Quasi-Incompetence and Incompetence

The court may issue a declaration of quasi-incompetence or incompetence under the laws of the Republic of Korea in respect of a foreigner having his habitual residence or residence in the Republic of Korea.

Article 15 Protection of Transactions

  • If a person who effects a juridical act and the opposite party are in the same country at the time of the formation of the juridical act, a person who would have capacity under the law of p. 3844that country cannot invoke incapacity under his lex patriae, unless the other party was or could have been aware of his incapacity at the time the juridical act was effected.

  • The provisions of paragraph (1) shall not apply to juridical acts under the provisions of the family law or the succession law and juridical acts relating to real estate located in a country other than the place where the act was effected.

Article 16 Legal persons and Associations

Legal persons or associations shall be governed by the law of the country under the laws of which the persons or associations were incorporated or formed. However, the law of the Republic of Korea shall apply if the head office of the person or association which was incorporated or formed in a foreign country is located in the Republic of Korea or the principal activities of the person or association are conducted in the Republic of Korea.

Chapter 3 – Juridical Acts

Article 17 Formal Validity of Juridical Acts

  • The formal validity of a juridical act shall be subject to the law governing that act.

  • A juridical act is formally valid if it satisfies the formal requirements of the law where the act was effected.

  • If the parties are in different countries at the time of the conclusion of a contract, the contract is formally valid if it satisfies the formal requirements prescribed for juridical acts by the law of one of those countries.

  • Where a juridical act is effected by an agent, the country in which the agent is located is relevant for the purpose of paragraph (2).

  • The provisions of paragraphs (2) to (4) shall not apply to the form of a juridical act, the subject matter of which relates to the creation or disposal of a real right or any other right subject to registration.

Article 18 Agency

  • The relationship between principal and agent shall be subject to the law governing the legal relationship between the parties.

  • Whether or not the principal is bound to a third party by an act of an agent shall be governed by the law of the country in which the agent has his business office or, if there is none or if it is not ascertainable by the third party, by the law of the country in which the agent has actually acted in the particular case.

  • If the agent is employed by the principal and has no business office of his own, the principal business office of the principal shall be deemed to be the agent’s business office.

  • Notwithstanding the provisions of paragraphs (2) and (3), the principal may designate the law governing the agency. The governing law so designated shall be effective only if it is expressly stated in the document proving the agent’s authority or notified in writing to the third party by either the principal or the agent.

  • The provision of paragraph (2) shall apply mutatis mutandis to the relationship between an agent without authority and a third party.

Chapter 4 – Real Rights (Rights in Rem)

Article 19 Law Governing Real Rights

  • Real rights concerning immovables and movables, as well as other rights subject to registration shall be governed by law of the site (lex situs) of the subject matter.

  • Acquisition, loss or change of the rights prescribed in paragraph (1) shall be governed by the lex situs of the subject matter at the time of the completion of the causal action or event.p. 3845

Article 20 Means of Transportation

Real rights concerning aircraft shall be subject to the law of its nationality and real rights concerning rolling stock shall be subject to the laws of the country approving its traffic service.

Article 21 Bearer Securities

Acquisition, loss and change of rights concerning a bearer security shall be governed by the lex situs of such security at the time of the completion of the causal action or event.

Article 22 Res in transitu

Acquisition, loss and change of real rights concerning goods in transit (res in transitu) shall be governed by the law of the country of destination.

Article 23 Contractual Security Interests over Claims, etc.

Contractual security interests over claims (chaekwon), shares and other rights, and the securities embodying such claims, shares and other rights shall be governed by the law applicable to the right over which such security interests are created. However, contractual security interests over bearer securities shall be subject to the provisions of Article 21.

Article 24 Protection of Intellectual Property Rights

The protection of intellectual property rights shall be subject to the law where the right was infringed.

Chapter 5 – Claims (Chaekwon)

Article 25 Party Autonomy

  • A contract shall be governed by the law expressly or impliedly chosen by the parties, provided that an implied choice may be acknowledged only when it is reasonable to do so in light of the terms of the contract or the circumstances of the case.

  • The parties may choose the law applicable to the whole or to only part of a contract.

  • The parties may at any time agree to change the law governing a contract designated under this Article or Article 26. Any change of the governing law made by the parties after the conclusion of the contract shall not prejudice its formal validity or the rights of third parties.

  • Where all the elements relevant to a situation are connected with only one country, the parties’ choice of a foreign law shall not exclude the application of mandatory rules of the law of that country.

  • The provisions of Article 29 shall apply mutatis mutandis to the formation and validity of the parties’ agreement on their choice of law.

Article 26 Objective Connection of Governing Law

  • If the law governing a contract has not been chosen by the parties, the contract shall be governed by the law of the country with which it is most closely connected.

  • It shall be presumed that the contract is most closely connected with the country where the party who is to carry out one of the performances in sub-paragraphs 1 to 3 has his habitual residence at the time of conclusion of the contract; (in the case of a legal person or association, with the country where the party has its principal place of business); if the contract is entered into during the course of a party’s profession or business activity, that country shall be deemed the party’s place of business:

    • in contracts of transfer, the performance of the transferor;

    • in contracts granting the use of a thing or a right, the performance of the party granting the use; or

    • in mandate contracts, contracts for completion of work and similar contracts for services, the performance of the party providing the services.

  • If the subject matter of the contract is a right in immovables, the law of the country where the immovable is situated is presumed to be most closely connected with the contract.p. 3846

Article 27 Consumer Contracts

  • If a contract entered into by a consumer for a purpose that can be regarded as being outside his profession or business activity falls into any of the following cases, a choice of law made by the parties cannot deprive the consumer of the protection afforded to him by the mandatory rules of the law of the country of his habitual residence:

    • where, prior to the conclusion of the contract, the other party engaged in or directed to that country professional or business activities including soliciting business through publicity, and the consumer had taken steps in that country necessary for the conclusion of the contract;

    • where the other party received the consumer’s order in that country; or

    • where the other party arranged the consumer’s journey to a foreign country for the purpose of inducing the consumer to order.

  • Notwithstanding the provisions of Article 26, a contract subject to paragraph (1) of this Article shall, in the absence of a choice of the governing law by the parties, be governed by the law of the country of the consumer’s habitual residence.

  • Notwithstanding the provisions of paragraphs (1) to (3) of Article 17, a contract subject to paragraph (1) of this Article shall be formally valid if it satisfied the formal requirements of the law of the country of the consumer’s habitual residence.

  • In the case of a contract subject to paragraph (1) of this Article, a consumer may also bring an action in the country of his habitual residence.

  • In the case of a contract subject to paragraph (1) of this Article, an action against the consumer may be brought by the other party only in the country of the consumer’s habitual residence.

  • The parties to a contract subject to paragraph (1) of this Article may, by written agreement, enter into an agreement on international jurisdiction to adjudicate. Such agreement is effective only if one of the following conditions is satisfied:

    • if such agreement is entered into after the dispute has arisen; or

    • if it allows the consumer to bring an action before another court in addition to those having jurisdiction under this Article.

Article 28 Employment Contracts

  • In the case of an employment contract, a choice of law by the parties cannot deprive the employee of the protection afforded to him by the mandatory rules of the law otherwise applicable under the provisions of paragraph (2).

  • Notwithstanding the provisions of Article 26, an employment contract shall, in the absence of a choice of law by the parties, be governed by the law of the country in which the employee habitually carries out his work, or if the employee does not habitually carry out his work in any one country, by the law of the country where the place of business that engaged him is situated.

  • In the case of an employment contract, an employee may also bring an action against an employer in the country where the employee habitually carries out his work or in the last country where he did so, or if the employee does not or did not habitually carry out his work in any one country, in the country where the place of the business that engaged him is or was situated.

  • In the case of an employment contract, an action against an employee may be brought by the employer only in the country of the employee’s habitual residence or in the country where the employee habitually carries out his work.

  • The parties to an employment contract may agree in writing on an international jurisdiction to adjudicate. Such agreement is effective only if one of the following conditions is satisfied:

    • if such agreement is entered into after the dispute has arisen; or

    • if it allows the employee to bring an action before another court in addition to those having jurisdiction under this Article.

    p. 3847

Article 29 Formation and Validity of Contracts

  • The formation and validity of a contract shall be determined by the law which would govern it under this Act if the contract were valid.

  • A party may nevertheless take recourse to the law of the country of his habitual residence to establish that he did not consent to the contract if it is evident from the circumstances that it would be clearly unreasonable to determine the effect of his conduct by the law designated in paragraph (1).

Article 30 Management of Affairs without Mandate (Negotiorum Gestio)

  • Management of affairs without mandate shall be governed by the law of the country in which the management took place. However, if the management of affairs without mandate was based on a legal relationship between the parties, it shall be subject to the law governing the legal relationship.

  • Claims resulting from payment of another person’s obligations shall be subject to the law governing the obligations concerned.

Article 31 Unjust Enrichment

Unjust enrichment shall be governed by the law of the country in which the enrichment took place. However, if unjust enrichment has resulted from a performance effected on the basis of a legal relationship between the parties, it shall be subject to the law governing the legal relationship.

Article 32 Torts

  • A tort shall be governed by the law of the place where the tort occurred.

  • Notwithstanding the provisions of paragraph (1), if the tortfeasor and the injured party had their habitual residences in the same country at the time the tort occurred, the tort shall be governed by the law of that country.

  • Notwithstanding the provisions of paragraphs (1) and (2), if the tort violates an existing legal relationship between the tortfeasor and the injured party, the tort shall be governed by the law applicable to the legal relationship.

  • In cases where a tort is governed by foreign law under the provisions of paragraphs (1) to (3), damages arising from the tort shall not be awarded if the nature of the damages is clearly not appropriate to merit compensation to the injured party or if the extent of the damages substantially exceeds appropriate compensation to the injured party.

Article 33 Subsequent Agreement on the Governing Law

Notwithstanding the provisions of Articles 30 to 32, the parties may agree, after an event constituting the management of affairs without mandate, unjust enrichment or a tort has occurred, that such event shall be subject to the law of the Republic of Korea. However, rights of third parties shall not be prejudiced by such agreement.

Article 34 Contractual Assignment of Claims (Chaekwon) and Assumption of Obligations

  • The legal relationship between the assignor and assignee of a contractual assignment of a claim shall be governed by the law applicable to the contract between the assignor and assignee. However, the law governing a claim (chaekwon) to be assigned shall determine its assignability and the effect of assignment as against the debtor and third parties.

  • The provisions of paragraph (1) shall apply mutatis mutandis to the assumption of obligations.

Article 35 Transfer of Claims (Chaekwon) by Operation of Law

  • The transfer of a claim (chaekwon) by operation of law shall be subject to the law governing the underlying legal relationship between the former and the new creditors on the basis of p. 3848which the transfer takes place. However, if any provision in the law governing the claim to be assigned protects the debtor, such provision shall apply.

  • If there is no such legal relationship referred to in paragraph (1), the transfer of a claim (chaekwon) by operation of law shall be subject to the law governing the claim (chaekwon).

Chapter 6 – Family Relations

Article 36 Formation of Marriage

  • The requirements for the formation of a marriage shall be governed by the lex patriae of each of the parties.

  • The form of the marriage ceremony shall be governed by the law of the place where the ceremony takes place or by the lex patriae of either party. If the marriage ceremony is performed in the Republic of Korea and one of the parties is a national of the Republic of Korea, the form of the ceremony shall be governed by the law of the Republic of Korea.

Article 37 General Effects of Marriage

The general effects of a marriage shall be governed by the law designated in the following order:

  • the lex patriae of the spouses if they have the same lex patriae;

  • the law of the habitual residence of the spouses if they have the same law of the habitual residence; and

  • the law of the place with which the spouses are most closely connected.

Article 38 Matrimonial Property Regime

  • The provisions of Article 37 shall apply mutatis mutandis to the matrimonial property regime.

  • Notwithstanding the provisions of paragraph (1), the matrimonial property regime shall be governed by any of the following laws chosen by the spouses:

    • the law of the nationality of one of the spouses,

    • the law of the habitual residence of one of the spouses, or

    • in the case of immovables, the law where the immovable is located, provided that their agreement on the governing law is in writing and affixed with the date, name and seal or signature of the spouses.

  • A matrimonial property regime governed by foreign law may not be enforceable against bona fide third parties with respect to juridical acts effected in the Republic of Korea or property located in the Republic of Korea. If a matrimonial property regime governed by foreign law is unenforceable in such cases, for the purpose of relations vis-à-vis third parties, such matrimonial property regime shall be governed by the law of the Republic of Korea.

  • Notwithstanding the provisions of paragraph (3), a matrimonial property contract entered into under foreign law may be enforceable against bona fide third parties if it is registered in the Republic of Korea.

Article 39 Divorce

The provisions of Article 37 shall apply mutatis mutandis to divorce. However, if one of the spouses is a national of the Republic of Korea having his or her habitual residence in the Republic of Korea, the divorce shall be governed by the law of the Republic of Korea.

Article 40 Relationships between Parents and Legitimate Children

  • The formation of a relationship between a parent and a legitimate child shall be governed by the lex patriae of one of the parents at the time of the child’s birth.

  • If the husband has died before the child’s birth, the husband’s lex patriae at the time of his death shall be deemed his lex patriae for the purpose of paragraph (1).p. 3849

Article 41 Relationships between Parents and Illegitimate Children

  • The formation of a relationship between a parent and an illegitimate child shall be governed by the law of the mother’s lex patriae at the time of the child’s birth. However, the formation of a parent and child relationship between the father and the child may also be governed by the law of the father’s lex patriae at the time of the child’s birth or by the law of the child’s current habitual residence.

  • Recognition may also be governed by the lex patriae of the person recognizing the child in addition to the laws set forth in paragraph (1).

  • In cases under paragraph (1) where the father has died before the child’s birth, the father’s lex patriae at the time of his death shall be deemed his lex patriae; in cases under paragraph (2) where the person recognizing the child has died before the recognition, the lex patriae of the person at the time of his death shall be deemed his lex patriae.

Article 42 Legitimation of Illegitimate Children

  • Matters concerning whether an illegitimate child is changed to a legitimate child shall be governed by the father’s or mother’s lex patriae or by the law of the child’s habitual residence at the time of the completion of the event which constitutes legitimation.

  • In cases under paragraph (1) where the father or mother has died before completion of the event constituting legitimation, the father’s or mother’s lex patriae at the time of death shall be deemed his or her lex patriae.

Article 43 Adoption and its Dissolution

Adoption and its dissolution shall be governed by the adoptive parent’s lex patriae at the time of the adoption.

Article 44 Consent

If the child’s lex patriae requires the consent or approval of the child or a third party with respect to the formation of a parent and child relationship under the provisions of Articles 41 to 43, such requirement shall also be satisfied.

Article 45 Legal Relationships between Parents and Children

A legal relationship between a parent and a child shall be governed by the child’s lex patriae if it is also the lex patriae of both father and mother; in other cases it shall be governed by the law of the child’s habitual residence.

Article 46 Maintenance

  • Maintenance obligations shall be governed by the law of the habitual residence of the maintenance creditor. However, if the maintenance creditor is unable to obtain maintenance from the debtor under such law, the law of their common nationality shall apply.

  • Notwithstanding the provisions of paragraph (1), if the spouses have divorced or their divorce has been recognized in the Republic of Korea, the maintenance obligations between the divorced spouses shall be governed by the law under which they divorced.

  • In cases of a maintenance obligation between persons related collaterally or by affinity, the debtor may contest the creditor’s request on the ground that no such obligation exists under the law of their common nationality or, in the absence of a common nationality, under the law of the debtor’s habitual residence.

  • If creditor and debtor are both nationals of the Republic of Korea and if the debtor has his habitual residence in the Republic of Korea, the law of the Republic of Korea shall apply to the maintenance obligations.

Article 47 Other Family Relations

Formation of family relations and the rights and obligations arising therefrom shall be governed by the lex patriae of each party concerned, unless otherwise provided by this Act.p. 3850

Article 48 Guardianship

  • Guardianship shall be governed by the lex patriae of the ward.

  • The guardianship over a foreigner who has his habitual residence or residence in the Republic of Korea shall be governed by the law of the Republic of Korea only if one of the following applies:

    • if there is no person to perform the guardianship duties although the grounds for commencement of guardianship exist under the ward’s lex patriae, or the person intended to perform the guardianship duties cannot perform his duties;

    • if a declaration of quasi-incompetence or incompetence has been issued in the Republic of Korea; or

    • if there is an otherwise urgent need to protect the ward.

Chapter 7 – Succession

Article 49 Succession

  • Succession shall be governed by the lex patriae of the deceased at the time of his death.

  • Notwithstanding the provisions of paragraph (1), succession shall be governed by one of the following laws selected by the deceased in any form applicable to a will:

    • the law of the country where the deceased had his habitual residence at the time of designation. Such designation shall be effective only when the deceased ma intained his habitual residence in that country until death; or

    • as regards the succession of immovables, the law of the place where they are situated.

Article 50 Will

  • A will shall be governed by the lex patriae of the testator at the time the will was made.

  • The amendment or withdrawal of a will shall be governed by the lex patriae of the testator at the time of the amendment or withdrawal of the will.

  • The form of a will shall be governed by any of the following:

    • the law of the nationality of the testator, either when he made the will or at the time of his death;

    • the law of the testator’s habitual residence, either when he made the will or at the time of his death;

    • the law of the place where the testator made the will; or

    • as regards a will relating to immovables, the law of the place where they are situated.

Chapter 8 – Bills of Exchange, Promissory Notes / Checks

Article 51 Capacity to Act

  • The capacity of a person who assumes obligations under a bill of exchange, promissory note or check shall be governed by the lex patriae of such person. If the lex patriae provides that such capacity shall be governed by the law of another country, the law of the other country shall apply.

  • If a person who lacks capacity under the provisions of paragraph (1) has signed within the territory of another country where he is considered legally capable, he shall be held capable of undertaking such obligations.

Article 52 Qualification of Payer of Check

  • The qualification of a person who may become the payer of a check shall be governed by the law of the place of payment.

  • If a check is invalid because the payer is a person who may not become a payer under the law of the place of payment, the obligations arising from the person’s signature in another country where there are no such provisions shall not be affected.p. 3851

Article 53 Form

  • The form of an act on a bill of exchange, promissory note or check2 shall be governed by the law of the place where the signature was affixed. However, 2 An ‘act on a bill of exchange, promissory note or check’ is a generic term referring to various acts encompassing issuance, endorsement, acceptance, aval, etc. effected in connection with a bill of exchange, promissory note or check [Translator’s Note]. the form of an act on a check may also be governed by the law of the place of payment.

  • If an act is invalid under the provisions of paragraph (1) but valid under the law of the place where a subsequent act is effected, the validity of any subsequent act shall not be affected by the invalidity of the previous act.

  • If an act on a bill of exchange, promissory note or check effected by a national of the Republic of Korea in a foreign country is invalid under the law of the place where the act was effected, but valid under the law of the Republic of Korea, such act shall be effective as against other nationals of the Republic of Korea.

Article 54 Effect

  • The obligations of the acceptor of a bill of exchange and of the issuer of a promissory note shall be governed by the law of the place of payment, the obligations arising from a check by the law of the place of signature.

  • The obligations under a bill of exchange, promissory note and check of persons other than those specified in paragraph (1) shall be governed by the law of the place of signature.

  • The period allowed for exercising the right of recourse relating to a bill of exchange, promissory note or check shall be governed by the law of the place of issuance of such instrument with regard to all the signatories.

Article 55 Acquisition of Underlying Claims

Whether or not the holder of a bill of exchange or promissory note acquires a claim underlying the issuance of such instrument shall be governed by the law of the place of issuance of such instrument.

Article 56 Partial Acceptance and Partial Payment

  • Whether or not the acceptance of a bill of exchange may be restricted to part of the sum payable, and whether or not the holder is obliged to accept partial payment shall be governed by the law of the place of payment.

  • The provisions of paragraph (1) shall apply mutatis mutandis to the payment under a promissory note.

Article 57 Form of Act for Exercising and Preserving Rights

The form of and limits of time for protest, as well as the form of other measures necessary for exercising or preserving the rights relating to a bill of exchange, promissory note, or check shall be governed by the law of the place where the protest must be drawn up or the measures in question are to be taken.

Article 58 Loss or Theft

The measures to be taken in the event of the loss or theft of a bill of exchange, promissory note or check shall be governed by the law of the place of payment.

Article 59 Law of Place of Payment

The law of the place of payment of a check shall apply to any of the following:

  • whether a check must be payable at sight or may be drawn payable at a fixed period after sight, and also the effects of post-dating a check;

  • the limit of time for presenting a check;

  • p. 3852whether a check may be accepted, guaranteed, confirmed or visaed, and the effects of such acceptance, guarantee, confirmation or visa;

  • whether the holder of a check may demand and shall be bound to accept partial payment;

  • whether a check may be crossed and the effects of such crossing or of the words ‘payable in account’ or any equivalent expression written on a check. Where the issuer or holder has forbidden payment of a check in cash by writing ‘payable in account’ or an equivalent expression on the instrument and such check has been drawn in a foreign country and is to be paid in the Republic of Korea, it shall have the effect of a generally crossed check;

  • whether the holder of a check has special rights to the cover and the nature of these rights;

  • whether the issuer may revoke the mandate for payment of a check or take measures to stop its payment; and

  • whether a protest or an equivalent declaration is necessary to preserve the right of recourse against the endorsers, issuer or any other party liable under the instrument.

Chapter 9 – Maritime Commerce

Article 60 Maritime Commerce

The following matters relating to maritime commerce shall be governed by the law of the country of the ship’s registration:

  • the ownership, mortgage, maritime lien and other real rights (rights in rem) in a ship;

  • the priority order of the security interests in a ship;

  • the scope of the shipowner’s liability for acts of the shipmaster and crew;

  • whether the shipowner, charterer, manager, operator or other users of the ship shall be entitled to invoke limitation of liability and the scope of such limitation of liability;

  • general average; and

  • the power of agency of a shipmaster.

Article 61 Collision of Ships

  • The liability resulting from a collision of ships at an open port and on inland or territorial waters shall be governed by the law of the place of the collision.

  • The liability resulting from a collision of ships on the high seas shall be governed by the law of the country of registration if both ships are registered in the same country or by the law of the country of registration of the ship causing the damage if the ships are registered in different countries.

Article 62 Salvage

The right to claim remuneration for salvage shall be governed by the law of the place where the salvage took place when the salvage was performed in territorial waters or by the law of the country of registration of the ship performing the salvage when the salvage took place on the high seas.

Addenda

  • (Entry into Force)

This Act shall enter into force on 1 July 2001.

  • (Scope of Application of Governing Law in Terms of Timing)

Matters that occurred before the entry into force of this Act shall be governed by the prior Act (Seoboesabeop). Legal relationships entered into prior to the entry into force of this Act but continuing after it has become effective shall be governed by this Act, however, only with respect to the parts of such a legal relationship in effect as from the entry into force of this Act.

  • p. 3853(Transitional Measures on International Jurisdiction)

Provisions on international jurisdiction under this Act shall not apply to cases pending before courts on the date on which this Act takes effect.

  • (Revision of other Acts)

The Arbitration Act shall be revised as follows:

‘Seoboesabeop’ in paragraph 1 of Article 29 shall be revised to read ‘Gukjesabeop’.

Unofficial translation by Kwang Hyun Suk, Professor at School of Law, Seoul National University, Seoul (Republic of Korea) based on the translation first published in (2003) 5 YbPIL 315 ff. The editors wish to thank the translator, the editors of the Yearbook of Private International Law (YbPIL), as well as the Dr. Otto Schmidt Verlag and sellier european law publishers for the permission to reprint the translation.