한일 과거청산의 법적 구조

Abstract

In 1965, a legal structure of righting the wrongs of the past between Korea and Japan was built, based on the Treaty on Basic Relations and the Agreement on the Settlement of Problems Concerning Property and Claims(hereinafter “the Agreement”), which were concluded after a 14-year long negotiation. But, despite the Treaty on Basic Relations, no agreement was achieved on the validity of 1910 Treaty between Korea and Japan. Despite the Agreement, no agreement was achieved on how the claims had been settled. ‘The 1965 System’ made an unstable start, because of these ambiguities, which stemmed from the conflict of views on the characteristic of the Japanese rule of the Korean Peninsula from 1910 to 1945, ‘The 1965 System’, which was a product of the Cold War, maintained unchallenged during the Cold War years. However, after the cessation of the Cold War, Korean victims’ fierce struggle for the righting the wrongs of the past caused cracks in ‘the 1965 System’. When the Japanese government accepted the responsibility for the colonial rule of the Korean Peninsula by the ‘Murayama Statement’ in 1995, ‘1965 System’ cracked from the Japanese side. When the Korean government declared that despite the Agreement “the legal responsibility of the Japanese government still remains” regarding the Japanese military ‘comfort women’ issue, the crack in ‘the 1965 System’ grew all the more serious, because the declaration made the gap between Korea and Japan widen. At present, hit by the epoch-making judgements of the Constitutional Court and the Supreme Court of Korea, ‘the 1965 System’ is on the verge of collapse. In 2011, the Constitutional Court recognized the fact that there was an interpretation dispute between Korea and Japan about the Japanese military ‘comfort women’ issue, and declared that it is unconstitutional that the Korean government did not resolve the dispute according to the article 3 of the Agreement. In 2012, the Supreme Court declared that the Japanese rule of the Korean Peninsula was “an illegal occupation” and that despite the Agreement, the claims deriving from “the unlawful acts directly connected to the colonial rule” were not extinguished. It is obvious that the conflict between Korea and Japan regarding ‘the 1965 System’ became dramatic by these declarations. It is clear where we should aim. We should declare officially that ‘the 1965 System’ have had its day, and establish a new legal structure which can totally liquidate the colonial rule. The year 2015, which will be the 50th anniversary of ‘the 1965 System’, should be the starting point of the new legal structure.