일본군 ‘위안부’ 문제에 있어서 공권력과 강제동원성 ―일본 재판부의 판결문 속 ‘국가무답책’ 법리를 중심으로―

Abstract

This paper is based on the sentences of the first case of the comfort women lawsuit in 1991--the compensation suit for Korean victims of the Asia-Pacific War--from the original trial to the final trial, In particular, this paper revealed that the concept of “public power intervention” played a key role in the interpretation and application of 'the ‘national unresponsiveness’, also called ‘the principle of national irresponsibility or ‘the principle of public power irresponsibility, and found court rulings which stated that the forced mobilization of comfort women and the damage of comfort women victims were caused by the Japanese ‘public power.’ The Japanese judiciary was able to exempt the Japanese government from the compensation liability by applying the principle of ‘national unresponsiveness’, but acknowledged its unfairness while applying, excluding, and reapplying the principle, thus explicitly stating in the ruling the forced mobilization of the Japanese authority in the establishment and operation of the comfort facilities and in the recruitment and management of the comfort women. As recognized by the Japanese judiciary, the damage of the Japanese military comfort women victims was forced by the Japanese public power to carry out the war. The Japanese government should humbly acknowledge these historical wrongs and take a proactive stance on the postwar compensation liability.