강제징용 손해배상의 타당성과 한일청구권협정의 법적 성격 (대법원 2018. 10. 30. 선고 2013다61381 전원합의체 판결을 중심으로)

Abstract

The present research reviews the legal propriety of indemnification for damages by Japanese companies to the victims of forced labor during the period of Japanese occupation. I compare between the ‘supreme court en banc decision of 2013Da61381 on 2018. 10. 30.’ and ‘supreme court decision of 2009Da68620 on 2012. 5. 24.’. In addition, I examined the legal characteristics of the Korea-Japan Agreement on Reparation which is the foundation for above cases. The supreme court decision of 2012 and en banc decision of 2018 have a similar conclusion and argumentation structure but the details are different. First, regarding the inclusion of indemnification for damages in Agreement on Reparation of 1965, the supreme court of 2018 had different opinions of views of the majority, separate views and dissenting views. The views of the supreme court of 2012 contended that ① Indemnification for damages is not included in the Agreement on Reparation; ② Even if it is included, individual right for reparation is not solely eliminated by the Agreement on Reparation and diplomatic protection is given up only. In contrast, the views of major opinion of the supreme court of 2018 considered that ① Indemnification for damages is included in the Agreement on Reparation; but they did not judge whether individual right for reparation is eliminated by the Agreement on Reparation. The separate views argued that ① indemnification for damages is included in the Agreement on Reparation; ② Individual right for reparation is not eliminated by the Agreement on Reparation. The dissenting views contended that ① indemnification for damages is included in the Agreement on Reparation; ② individual right for reparation is not “eliminated”only soley but ‘limited’ by the Agreement on Reparation. Second, the 2012 and 2018 decision had different views about the foundation of indemnification for damages. The 2012 decision classified the foundation of indemnification for damages followed into the illegal act of forced enforcement, violation of duty of safety consideration and claim for unpaid wages. On the contrary, the 2018 decision clarified that the foundation of indemnification for damages is the claim for the alimony against the illegal act, not the claim for unpaid wages or compensation. The supreme court decision from 2012 and en banc decision from 2018 are valid. The most important issue from the 2018·2012 decision is whether or not individual right to demand indemnification for victims of forced labor had been settled by the the article 2 of the “Treaty on Basic Relations between the Republic of Korea and Japan” and “Korea-Japan Agreement on Reparation”of 1965 Therefore, I reviewed the process and significance of the Agreement on Reparation. The article 2 of the Agreement on Reparation is an “unfinished agreement” that was settled without reaching an agreement on “indemnification” for damages from Japan’s colonial rule. The legal characteristic of the Agreement of Reparation is “reconciliation by the international law”. In the contract of compromise, additional indemnification for damages is possible when delayed damages occur. Korea and Koreans who were not aware of the individual losses from the forced labor when the Agreement of Reparation was settled in 1965 are entitled to request for the indemnification of delayed damages. However, the Agreement of Reparation is a type of treaty that is valid on the international level; thus it is not appropriate to apply the principles of domestic private law. Furthermore, the article 2 of the Treaty on Basic Relations between the Republic of Korea and Japan of 1965 was hastily made without reaching an agreement on the invalidity of Korea-Japan Treaty before 1910 (Korea-Japan Annexation Treaty, Protectorate Treaty between Korea and Japan). However, the treaties regarding annexation, including the Korea-Japan Annexation Treaty of 1910, were ‘invalid treaties settled based on the compulsion to the national representative’ at that times. The general mobilization law and the commandeering law during the period of Japanese occupation were also illegal and invalid. Therefore, the forced transfer enforcement labor are construed as illegal acts that are not based on the legislation. I hope the supreme court and constitutional court legally decide the invalidity of Korea-Japan Treaty before 1910.