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한국재산법학회 재산법연구 재산법연구 제26권 제3호
발행연도
2010.1
수록면
133 - 169 (37page)

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As of 11 January 2009, Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) will be applicable in twenty-six European Union Member States. The Rome II Regulation applies to events giving rise to damage which occur after its entry into force on 19 August 2007 in proceedings commenced after 11 January 2009. This Regulation provides conflict of law rules for tort and delict, unjust enrichment and restitution, negotiorum gestio and culpa in contrahendo. It has a wide scope covering almost all issues raised in cases of extra-contractual liability. The majority of the rules in the Rome II Regulation are inspired by existing rules from European countries. Others are pioneering, innovative new rules. Compared to many of the national systems of private international law of non-contractual obligations, Rome II Regulation introduces precise, modern and well-targeted rules on the applicable law that are well adapted to the needs of European actors. It provides, in particular, specific rules governing a certain number of specific torts (e.g. product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights, and industrial action). The provisions of the Regulation will considerably increase legal certainty on the European scale, while at the same time giving courts the freedom necessary to deal with new or exceptional situations. The material scope of the Rome II Regulation is set out in Article 1. The Regulation applies to non-contractual obligations in “civil and commercial matters”, a term which is to be understood in the same sense as in the Brussels I Regulation. The Regulation would therefore not apply to revenue, customs or administrative matters. Article 1(2) specifically excludes non-contractual obligations arising out of family relationships, matrimonial property regimes and succession, obligations under negotiable instruments, the personal liability of officers and members for the debts of a corporate and incorporated body, the personal liability of persons carrying out a statutory audit, the liability of settlors, trustees and beneficiaries of a trust, and, finally, non-contractual obligations arising out of nuclear damage. The approach taken by the Commission in the Regulation is to divide non-contractual obligations into two major categories, those that arise out of a tort or delict and those that do not. The latter category would include quasi-delictual or quasi-contractual obligations, including, in particular, unjust enrichment and negotiorum gestio (agency without authority). Article 2 provides that the Regulation is to have universal application so the uniform conflict rules laid down in the Regulation can designate the law of an EU Member State or of a third country. Rome II is not restricted to cross border or intra Community disputes. Its rules would apply and could lead to the application of Californian law in a case before a United Kingdom court brought by an American claiming damages for a traffic accident caused by a United Kingdom citizen when driving on holiday in California. Article 3 lays down the general rules for determining the law applicable to non-contractual obligations arising out of a tort or delict. The law applicable is to be the law of the country in which the damage arises or is likely to arise irrespective of the country in which the event giving rise to the damage occurred or of the country or countries in which indirect consequences of that event arise. There are two exceptions to the general rule. Article 3(2) contains a special rule that where the person claimed to be liable and the person who has allegedly sustained damage are habitually resident in the same country, the law of that country would be applicable. Article 3(3) contains a more general exception. Where it is clear from all the circumstances of the case that the non-contractual obligation is manifestly more closely connected with another country, the law of that other country should apply. The general rule in Article 3 is displaced by particular rules which apply in the case of product liability (Article 4), unfair competition (Article 5), privacy and the rights relating to personality (Article 6), violation of the environment (Article 7) and the infringement of intellectual property rights (Article 8). For the Korean manufacturers would be of great interest the rules of the law applicable to international product liability. The law applicable to international product liability cases is not exclusively determined by the rule in Article 5 of the Regulation, although this provision is the lex specialis in relation to the lex generalis in Article 4. Rather, the lex specialis is intertwined with other rules of the Regulation and, in effect, is only replacing Article 4(1): under Article 14, a choice of law takes precedence over any of the objective connections of Article 5 just as it does over the objective connections of Article 4. The common habitual residence rule and the escape clause apply equally in cases of product liability as in all other cases of tort and delict: Article 4(2) is incorporated by reference, Article 4(3) is restated in Article 5(2). Hence, the unique part of the lex specialis in Article 5 is the cascade system of connecting factors supplemented by a foreseeability defence. Accordingly, these two elements are highlighted in recital 20 of the Regulation as forming the core of the rule on product liability. The law applicable to cases of product liability may be illustrated by projecting the system created by the interaction of Article 4, 5 and 14:1. Choice of law (Article 14), or, failing that,2. Common habitual residence (Article 5(1)1 in combination with Article 4(2)), or, failing that,3. Habitual residence of the person sustaining damage if the product was marketed in that country (Article 5(1)1 lit. a) and if this marketing was reasonably foreseeable for the producer (Article 5(2)2) or, failing that,4. Place of acquisition of the product if the product was marketed in that country (Article 5(1)1 lit. b) and if this marketing was reasonably foreseeable for the producer (Article 5(1)2 or, failing that,5. Place of occurrence of damage if the product was marketed in that country (Article 5(1)1 lit. c) and if this marketing was reasonably foreseeable for the producer (Article 5(1)2), with connections 2 to 5 being subject to a 6. Manifestly closer connection another country (Article 5(2) - repeating Article 4(3)). Although Article 5 is in substance merely replacing Article 4(1), it was better to put the special rule on product liability into a separate provision of the Regulation. There are further special rules in Articles 6 to 9 of the Regulation. Each of those makes reference to the general rule in Article 4 to a different extent and in a different respect. A choice of law under Article 14 does not prevail in all of those special fields. Incorporating all these aspects into Article 4 would have resulted in an unnecessarily complex rule. Under Article 5 in an action arising out of an act of unfair competition the applicable law would be the law of the country “"where competitive relations or the collective interests of consumers are or are likely to be directly and substantially affected”". Unfair competition is not defined but the Commission’'s Explanatory Memorandum would suggest that it is intended to cover both traditional Continental unfair competition (i.e. misleading advertising, enticement away of a competitor’'s staff, boycotts and passing off) and also actions for breach of “"modern competition law”" such as Articles 81 and 82 of the EC Treaty. Article 6 deals with ‘'violations of privacy and rights relating to the personality’' (for example, defamation actions). The Commission originally proposed that the laws of a victim’'s habitual residence should be applied but that proposition was subject to extensive criticism during the consultation exercise. Article 6 now proposes that law applicable to violations of privacy and rights relating to the personality should be determined in accordance with the rules in Article 3 (that is the law of the place where the direct damage is sustained) unless the parties reside in the same State or the dispute is more closely connected with another country. But where the application of that law would be contrary to the fundamental principles of the forum as regards freedom of expression and information the applicable law would be the domestic law of the court. Article 6(2) provides for the law of the habitual residence of the broadcaster or publisher to apply in relation to any right to reply or “"equivalent measures”". As regards the “"violation of the environment”", Article 7 provides that the applicable law should again be determined by the general rule in Article 3 unless the claimant “"prefers to base his claim on the law of the country in which the event giving rise to damage occurred”". The victim of environmental damage would therefore be able to choose which applicable law would be more favourable to him. The Commission’'s explanation is that relying only on Article 3 would mean that a victim in a low protection country would not enjoy the higher level of protection available in neighbouring countries, and that this could give the polluter an incentive to carry out his operations at the border so as to discharge toxic substances into a river and enjoy the benefits of the laxer rules of the victim’'s country. Article 8 contains a special rule relating to the infringement of intellectual property rights. According to Recital 14 the term intellectual property rights means copyright, related rights, sui generis rights for the protection of databases and industrial property rights. The applicable law will be the law of the country in which protection is sought. This rule, which the Commission explains derives from the nineteenth century version of the Berne and Paris Conventions, enables each country to apply its own law to enforcement of an intellectual right which may be validly asserted in that country. Section 3 of the draft Regulation sets out rules common to tort or delict cases as well as those arising from other non-contractual obligations. Article 10 provides that the parties must be allowed after the dispute has arisen to choose the law applicable to the non-contractual obligation. This would not be allowed for intellectual property disputes, where the rule in Article 8 would apply. Article 11 describes the scope of the law applicable to non-contractual obligations and confers a very wide function on the applicable law. In addition to dealing with the conditions and extent of liability, the applicable law (determined in accordance with the rules set out in Articles 3 to 9) will govern the availability and quantum of damages, measures to prevent or terminate injury or damage, liability for acts of a third party and prescription and limitation. Article 12 is based on a similar rule in Rome I. Article 12 provides for effect to be given to the mandatory rules of another country with which the situation is closely connected if and in so far as under the law of that country the mandatory rules would be applied whatever the law applicable to the non-contractual obligation. Article 12(2) makes clear that nothing in the Regulation restricts the application of the mandatory rules of the forum State. Article 13 requires the forum court to take account of the rules of safety and conduct in force at the place and time of the relevant event. This rule is based on corresponding Articles in the Hague Conventions on traffic accidents and product liability. Article 13 recognises the fact that the actors must abide by the rules of safety and conduct (for example, the road traffic rules) in force in the country in which they operate, irrespective of the law applicable to the civil consequences of their acts. Article 14 provides for the right of a person injured by another to take direct action against that other person’'s insurer to be governed by the law applicable to the non-contractual obligation, or the law applicable to the insurance contract, at the option of the claimant. The purpose of this rule is to limit the choice of law to the two systems which the insurer might expect to be applied. Articles 15 and 16 have precedents in Articles 13 and 9 of Rome I. They provide rules on the choice of law relating to subrogation arrangements and rights of contribution, and on the formal validity of any unilateral act intended to have legal effect. Article 17 (burden of proof) also corresponds to a provision in Rome I. It provides that the applicable law would also determine the burden of proof, including the existence and effect of presumptions. The applicable law would therefore displace the lex fori which would normally apply to procedural rules. Article 18 provides for seabed installations, ships and aircraft to be treated as being the territory of a State. Article 19 provides for the principal establishment of a legal person to be treated as its habitual residence for the purposes of the Regulation. Article 20 excludes renvoi, and so excludes from the applicable law the private international law rules of that law. Article 21 applies to Member States in which more than one legal system coexists, such as the United Kingdom. Article 21(2) provides that such a State need not apply the Regulation to conflicts solely between such systems.
#국제사법 #저촉법 #불법행위의 준거법 #로마협약 #유럽공동체법 #로마 II #계약외의 채권관계에 관한 준거법 #제조물책임 #부정경쟁 #자유경쟁제한 #환경침해 #지적재산권침해 #노동쟁의 #Private International Law #PIL #Conflict of Laws #Applicable Law for Torts #European Community Law #Rome II #Non-contractual Obligation #Product Liability #PL #Unfair Competition #Restriction of Free Competition #Environmental Damage #Infringement of Intellectual Property Rights #Industrial Action

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참고문헌 (23)

참고문헌 신청
/ 2001 / Mankowski, Das Herkunftslandprinzip als Internationales Privatrecht der e-commerce-Richtlinie, 100 ZvglRWiss 137 (2001) google schola / 2001 / Thunken, Die EG-Richtlinie uber den elektronischen Geschaftsverkehr und das internationale. Privatrecht des unlauteren Wettbewerbs, IPRax 2001, 15 google schola / 2002 / Mankowski, Das Herkunftslandprinzip und deutsches Umsetzungsgesetz zur e-commerce-Richtlinie, IPRax 2002, 257 google schola / 2003 / Kadner Graziano, Europaisches Internationales Deliktsrecht, Tubingen 2003 google schola / 2004 / Fuchs, Zum Kommissionsvorschlag einer "Rom II"-Verordnung, GPR 2004, 100 google schola

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