강제동원 관련 한인(조선인)소송에 있어 개인배상청구권 연구
Legal Analysis of the Korean Court Actions concerning Forced Mobilization - From the View Point of Individual Rights of Reparation Claim
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International war crimes committed by imperial Japan can be categorized as follows：First, forced labour toward Koreans. Second, refusal of compensation toward the victims and their heirs of atomic bomb who had lived in Japan because of forced movement. Third, non-fulfillment of repatriation toward Korean who compelled movement and left in Sakhalin after the World War Ⅱ. Fourth, act of sexual slavery toward Korean women by Japanese army before and during World War Ⅱ“( comport woman”). This Article, in regard to the reparation litigation filed by Koreans for imperial Japan’s international war crimes, defined the forced mobilization as a dispersed situation which is compelled by social structure of colonial Korea whatever Japanese government justified and titled in Chapter Two. It categorizes the types of litigation such as litigation of sexual slave victims, litigation of slave labour, and litigation of detained victims in Sakhalin and analyze the international legal issues of the litigations in Chapter Three. The litigations dealt with the international legal issues in common such as subject of international law, existence of diplomatic protection and the individual right of compensation, the effectiveness of treaties during wartimes, Jus Cogens, the relations of international law and domestic law, the nationality of Korean victims, and the matter of prescription in international law. In Chapter Four, it discuss the legal issues and concluded as follows：In regards to the litigation of WWⅡ reparations, Japanese courts have consistently held that the providing of compensation for wartime injuries is simply a matter of policy for the legislature to decide. The Court held that Koreans reparation claims against the Japanese government were extinguished as a result of the measures established pursuant to the peace treaty between the Republic of Korea and Japan. In particular it addressed the question as to whether and to what extent Japanese court continue to refuse the existence of legally enforceable rights to monetary compensation of the individual victims of violations of humanitarian law, both under currently applicable international and domestic Japanese law. Whereas such an individual rights did not exist under international law as applicable during World War Ⅱ, there is currently a strongly increasing tendency to accept the existence of such an individual rights as forming part of present international law. Japan is under legal obligation to pay reparations and make compensation - a position which clearly does not exclude a moral obligation to do so. Since several years, there is an increasing tendency among international lawyers to accept the existence, under present international law, of a legally enforceable right of individual victims of violations of international humanitarian law to financial compensation as also reflected in the Basic Principles and guidelines on the Rights to a Remedy and Reparation for victims of Violations of International Human Rights and Humanitarian Law, adopted in 2005 by the United National Commission on Human Rights. Japanese government should recognize the right of individual victims and make apology toward the victims of imperial Japan’s war crime. It will contribute to realize international justice and peace.
Abstract
International war crimes committed by imperial Japan can be categorized as follows：First, forced labour toward Koreans. Second, refusal of compensation toward the victims and their heirs of atomic bomb who had lived in Japan because of forced movement. Third, non-fulfillment of repatriation toward Korean who compelled movement and left in Sakhalin after the World War Ⅱ. Fourth, act of sexual slavery toward Korean women by Japanese army before and during World War Ⅱ“( comport woman”). This Article, in regard to the reparation litigation filed by Koreans for imperial Japan’s international war crimes, defined the forced mobilization as a dispersed situation which is compelled by social structure of colonial Korea whatever Japanese government justified and titled in Chapter Two. It categorizes the types of litigation such as litigation of sexual slave victims, litigation of slave labour, and litigation of detained victims in Sakhalin and analyze the international legal issues of the litigations in Chapter Three. The litigations dealt with the international legal issues in common such as subject of international law, existence of diplomatic protection and the individual right of compensation, the effectiveness of treaties during wartimes, Jus Cogens, the relations of international law and domestic law, the nationality of Korean victims, and the matter of prescription in international law. In Chapter Four, it discuss the legal issues and concluded as follows：In regards to the litigation of WWⅡ reparations, Japanese courts have consistently held that the providing of compensation for wartime injuries is simply a matter of policy for the legislature to decide. The Court held that Koreans reparation claims against the Japanese government were extinguished as a result of the measures established pursuant to the peace treaty between the Republic of Korea and Japan. In particular it addressed the question as to whether and to what extent Japanese court continue to refuse the existence of legally enforceable rights to monetary compensation of the individual victims of violations of humanitarian law, both under currently applicable international and domestic Japanese law. Whereas such an individual rights did not exist under international law as applicable during World War Ⅱ, there is currently a strongly increasing tendency to accept the existence of such an individual rights as forming part of present international law. Japan is under legal obligation to pay reparations and make compensation - a position which clearly does not exclude a moral obligation to do so. Since several years, there is an increasing tendency among international lawyers to accept the existence, under present international law, of a legally enforceable right of individual victims of violations of international humanitarian law to financial compensation as also reflected in the Basic Principles and guidelines on the Rights to a Remedy and Reparation for victims of Violations of International Human Rights and Humanitarian Law, adopted in 2005 by the United National Commission on Human Rights. Japanese government should recognize the right of individual victims and make apology toward the victims of imperial Japan’s war crime. It will contribute to realize international justice and peace.
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