절취한 약탈 문화재의 소유권에 관한 고찰- 대법원 2023. 10. 26. 선고 2023다215590 판결을 중심으로-

Abstract

South Korean thieves stole the Buddha statue enshrined in Gwaneumsa Temple in Tsushima, Japan, around October 2012. After that, they were arrested while smuggling into the country and the statue was confiscated. This Buddha statue was made to enshrine it in Buseoksa Temple in Seoju around 1330. Its successor, the current Buseoksa Temple, claimed ownership of the Buddha statue and requested its return against the defendant, Republic of Korea. In the first trial, the plaintiff’s claim was accepted, but in the second trial, the plaintiff’s claim was dismissed. From the second trial, Japanese Gwaneumsa also participated in the lawsuit as an auxiliary participant of the defendant and claimed ownership of the Buddha statue. The Supreme Court acknowledged that the plaintiff Buseoksa and Seoju Buseoksa were the same rights subject, but confirmed that the defendant’s auxiliary participant, Gwaneumsa, acquired ownership of the Buddha statue according to the Japanese Civil Law, the governing law, in accordance with international private law. This judgement may be difficult to accept due to public sentiment, but the results are not different even under Korean civil law because the contents of the acquisition prescription of the Japanese civil law and our civil law are virtually the same. In the end, it is not possible to accept the claims of plaintiff Buseoksa without justifiable grounds or reject the claims of Japanese Kwaneumsa, an auxiliary participant as defendant, in the name of national sentiment. Considering these points, the content of the judgment that decided whether ownership of the Buddha statue belongs to the Buddha statue according to the logic of private international law and the legal principles of acquisition prescriptions is valid. However, regardless of the attribution of ownership of this Buddha statue, the Republic of Korea should make efforts to return not only the Buddha statue in this case but also looted cultural properties located overseas, taking into account the UNIDROIT Convention and international legal ideology on the protection of cultural property.