일제강제징용 피해자의 법적 구제에 관한 국제법적 쟁점과 향후 전망 - 2012년 대법원 판결을 중심으로 -

Abstract

Almost all efforts of Koreans who were victims of compulsory draft during the last period of Japanese occupation of Korea to acquire legal remedy for the damages inflicted upon them by Japanese government or Japanese nationals (including juridical persons) ended without any success. They have raised various kinds of lawsuits before the courts of Japan only to lose the cases. Disappointed with these results, they raised similar lawsuits before the Korean courts and the outcomes were not different from Japanese courts' judgments till the Supreme Court of Korea delivered path breaking judgments on May 24, 2012. These two judgments by Korean Supreme Court, reversing two High Court judgments, recognized the responsibility of two Japanese companies to make compensation for the damages suffered by plaintiffs. Though it is beyond any doubt that the conclusions of the Supreme Court's judgments are in accordance with demand of justice, there are some doubtful points with regard to the legal grounds for the decisions. When it comes to the issues of international law of the cases, the judgments suggest that plaintiffs' rights for the compensation of their damages were not the objects of the 1965 Claims Rights Settlement Agreement between Korea and Japan. The judgments further say that, even thought their 'claims rights' might be admitted to be included in the objects of the 1965 Agreement, the rights waived there are only the right of diplomatic protection owned by state, and plaintiffs' individual rights are never waived by the Agreement. The detailed review of the reasons for the former conclusion of the Supreme Court in this study shows that they are not so persuasive. Similar review of the legal grounds for the latter conclusion shows that this part of the conclusions had better be based upon Japanese government's persistent argument of non-extinguishment of individual claims rights by the 1965 Agreement. As Japanese government has very different view from the Supreme Court of Korea about the settlement of the plaintiffs' rights for alleged compensation, it is highly probable that Japan will call for the state responsibility of Korea when Korean administration enforce the execution of the Korean courts' decisions. In that sense, it may be said that a legal dispute is already arisen between Japan and Korea.