국제사법상 문화재의 기원국법주의(lex originis)에 관한 연구

초록

Today, a number of legal disputes arise because of the illegal trade in the cultural properties. Once a cultural property is transferred across the border, it features ‘foreign element’, then norms of private international law will work. The principle to determine the applicable law on the real rights is so called lex rei sitae, which apply the law of country in where the object is located. The conventional orthodoxy is to apply the law of the country in which the transferred cultural property is located for the choosing the applicable law in the foreign affairs concerning return of cultural property, because cultural property is legally a kind of property. Many foreign judgments, which deal with international affairs related to cultural properties, determined the applicable law depending on the lex rei sitae. However, the author suggests so-called lex originis in the foreign disputes concerning return of cultural properties as a new principle of choosing applicable law that can be replaced with lex rei sitae, which, the author thinks, neglects the different characteristics of “cultural” property compared with other “common” property. The reason is that according to lex rei sitae, ownership laundering of cultural property is possible on account of changing the location as a connecting factor to other country, that makes it difficult to return the cultural property. Therefore, in order to overcome these drawbacks, lex originis is reasonable principle of choosing applicable law, which designates the right on cultural property in the light of cultural property protection and international comity. Then, a question about how to establish “origin” of cultural property arise, to which the author suggests nine criteria in this paper. These criteria can be provided as useful determining factors for the meaning of “most significant relationship” Article 8 of current Korean Private International Law.

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