북한의 불법행위를 심리하는 소송의 준거법 지정 문제

Abstract

Recently, the Seoul Central District Court delivered a default judgement stating that North Korea is liable to the Korean descendants residing in Japan who went to North Korea in the 1960s as part of the exchange student program but were detained by North Korea against their will. With similar judgements regarding the South Korean veteran soldiers, it has long been anticipated that an increasing number of detainees and abductees of North Korea would seek compensation before the South Korean courts, where it can be challenging to determine which country's tort law should apply. The relationship between two Koreas is paradoxical, as they are enemies and partners for reunification simultaneously. Nevertheless, the applicable law in the tort cases between them should be determined following the rules from the Act on Private International Law. According to the South Korean Supreme Court precedent, which is reaffirmed by many scholars, the applicable law should be “the law of the place where [the tort] is committed or the consequences thereof occur.” The victims, therefore, may seek compensation under the law of the country where the abductions were committed. North Korean wrongdoing could have been committed solely in the North Korean territory, in which case the North Korean tort law should be applied. However, the legislation provides that only agencies, not the country itself, are liable for damages, which leaves open the legal vacuum with regard to state liability. As widely recognised, the South Korean court would complementarily apply the lex situ, i.e., in this case, the South Korean tort law. Legal practitioners, nevertheless, should note that the lex situ is the last resort and can be easily excluded by any possible governing law, such as Japanese tort law in cases involving wrongful acts committed in the Japanese territory.