문화재 소송에서 국가면제에 관한 연구 - 미국 외국주권면제법상 수용예외 조항을 중심으로 -

초록

The history of cultural assets has been a series of desolation by an illegal act such as robbery, tomb theft and illegal shipping out and now, they are moaning while not being able to restore law and justice. This was an outcome of greed in mankind, hidden behind passion and concern about culture and art. Moreover, international agreement and domestic laws concerning cultural assets have not shown noticeable results for the solution of disputes over cultural assets. Even in such a pessimistic legal situation, subjects like individuals or countries that would get back their cultural assets continuously raised civil suits to domestic courts and obtained good results, sometimes. South Korea, too, raised an administrative litigation for the return of Oegyukanggak Royal Books of the Joseon Dynasty that France was holding by citizens in 2010 at a French court. Movement for the return of cultural assets has been carried out through civil suits in 2014, for the redemption of cultural assets leaked to overseas during the period of Japanese Colonial Rule and the period of the Korean War, lawsuits were filed in the U.S. and Japanese courts. The U.S. court reaches verdicts of return, actively, establishing the jurisdiction of foreign properties in a suit to ask for the return of cultural assets unduly forfeited by Nazi regime or Soviet Union Communist Party administration in the past, under the Foreign Sovereign Immunities Act (US FSIA) enacted in 1976. In lawsuits on the return of cultural assets raised in the U.S. court against a foreign government, establish international judicial jurisdiction and hand down a ruling on the return, Article 1605 (a)(3) “Takings Exception or Expropriation Exception” of the U.S. FSIA) applies mostly. The provision on the exception of ‘expropriation’ is provided only in the U.S. FSIA. In order to come under ‘expropriation exception’ in the U.S. FSIA, ‘the object of a lawsuit must be acquired by violating an international law.’ The ‘expropriation’ of which the ‘acquisition violates the international law’ refers to ① one that is not for a public purpose; ② one that should be differentiated; and ③ one for which no compensation is made. Even if the conditions for expropriation, which is the violation of the international law, the property or a property exchanged with the property should be located in the U.S., and it should be related to the commercial action performed by a foreign government. There is a criticism that the U.S. shows off its position as a power and shows a nationalist tendency in applying the provision of expropriation exception to a lawsuit on the return of cultural assets on the U.S. FSIA. However, it is considered the suggestion of a ground on the domestic jurisdiction of victim countries, including South Korea that do not get a number of important cultural assets cultural assets returned even if they were plundered of them. Moreover, it is judged that it is appropriate that it established the principle of the return to the original owner in accordance with the principles of law and justice in the international order concerning cultural assets.

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