강제징용배상 및 임금 청구의 준거법

Abstract

The primary questions of the two cases at hand are whether the Japanese judgments that have dismissed the claims seeking compensation of damage and payment of outstanding wages of the Korean plaintiffs who had been forced to work as slave laborers during the Japanese occupation of the Korean peninsula. The two judgments of the Supreme Court of May 24, 2012 (one against Mitsubishi and the other against Nippon Steel Corporation)(collectively the “Supreme Court Judgments”) refused to recognize the Japanese judgments on the ground that the recognition of the Japanese judgments would be against the ordre public of Korea. Based upon this conclusion,we can presume that the Supreme Court will take the same approaches when applying a foreign law to specific issues. It is also noteworthy that the Supreme Court Judgments held that the issue of whether the old Mitsubishi and the Defendant constitute the same legal entity should be governed by Korean law because the conclusion that they are separate legal entities adopted by the Japanese judgments is clearly against the ordre public of Korea. In determining whether the claims of the Plaintiffs have been extinguished by prescriptive period, the Supreme Court Judgments applied Korean law to tort claims and Japanese law to wages claims, respectively,which is quite correct. However, the reason for the Supreme Court Judgments that the Defendant's recourse to prescriptive period constitutes abuse of rights under Japanese law is not persuasive, because the Japanese judgments clearly held that it is not the case under Japanese law. Clearly, this is a matter to be determined by the Japanese judgments. The Supreme Court Judgments should have held that such conclusion of the Japanese judgments would be against the ordre public of Korea,which is a matter to be determined by the Korean courts.