누가 「고려 불상」을 소유하는가?

초록

In 2012, the Goryeo Buddhist statue, which was located in the temples of Tsushima, Japan, was stolen and was smuggled into Korea. The Korean government tried to return the Buddhist statue confiscated from the thief to the Japanese side, but Buseok Temple in Seosan filed a lawsuit claiming that the Buddhist statue was looted by Japanese raiders during Goryeo Dynasty and accordingly it belongs to Buseok Temple. In this lawsuit, the court of first instance recognized the ownership of Buseok Temple in Seosan (Daejeon District Court, Dec. 26, 2017, Decision 20110GaHab 102119). This case is now pending in the trial court. The facts of the case are relatively simple, but in this case, various legal issues such as international law issues, private international law issues, and domestic substantive legal issues are intertwined. However, the Court's ruling seems to have little to deal with these legal issues. In this paper, I attempted to examine the major legal issues that could be raised in this case, in the form of an comment of the court 's judgment (Chapter I). Chapter Ⅱ searched the issues of the International Convention, which examined the meaning of the 1970 UNESCO Convention and obligation of member states to return illegally exported cultural property in accordance with the Convention. Chapter III examined the issues of private international law, pointing out the drawback of the principle of lex rei sitae, which is the principle of the governing law for right of goods, and proposed the principle of lex originis as an alternative. Chapter IV dealt with the issues of substantive private law, which contained the issue of presumption of legitinacy for possessor, issue of the good faith acquisition and the acquisitive prescription. Since the conclusion of the court’s ruling without reviewing of such issues is unreasonable, consequently the second instance court should thoroughly examine these legal issues (Chapter Ⅴ).

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