매장문화재 국유에 관한 UNESCO-UNIDROIT 모델법률조항 - 국제사법적 함의와 우리 법제에의 시사점을 중심으로

초록

UNESCO and UNIDROIT drafted Model Provisions on State Ownership of Undiscovered Cultural Heritage in 2011 for the purpose of resolving foreign courts’ reluctance to recognize origin state’s legal provisions on the state ownership of undiscovered cultural objects. The legal nature of the Model Provisions is model legislative provisions and their simple and clear wordings can help the foreign courts apply origin state’s legal provisions on undiscovered cultural objects’ state ownership without the ambiguity that often arises before foreign courts. Provision 3 of the Model Provisions provides that undiscovered cultural objects are owned by the origin state, provided that there is no prior existing ownership; Provision 4 provides that cultural objects excavated contrary to the law or licitly excavated but illicitly retained are deemed to be stolen objects; and Provision 5 provides that the transfer of ownership of a cultural object deemed to be stolen under Provision 4 is null and void, unless it can be established that the transferor had a valid title to the object at the time of the transfer. As these provisions share different perspectives that are not in line with the relevant Korean law, the amendment is required in order for these provisions to be adopted. As each state’s legal system on undiscovered cultural heritage and private international law varies from state to state, the effectiveness of the Model Provision is limited unless both an origin state and a forum state adopt the Model Provisions.

키워드