약탈 문화재의 소유권귀속에 관한 연구 - 서산 부석사 금동관음보살상을 중심으로 -

Abstract

In some cases, illegal looting of cultural properties due to war or colonization are returned to the original country in the form of permanent return or permanent lease by international agreements or diplomatic negotiations between the two countries. However, it is a very rare case to return home accidentally by illegal methods such as theft. Especially when this looted statue of the Buddha loses its possession owing to a criminal act such as theft, it is placed in the dilemma of whether it should be returned to the occupant or returned to the original owner. The legal issues concerning the ownership of the statue in this case are a matter of establishing the fact relevance as to whether the statue of Buddha was unlawfully removed from the original owner by japanese raider in Goryo Dynasty, the possibility of acquiring ownership by the Kanonji(Jananese temple) due to good faith acquisition or legal prescription, the possibility of request a return by the original owner(Korean temple) due to the forfeit by Korea government. First, regarding the possibility of looting of the statue in this case, under the condition that there is no proof of acquisition of legitimate ownership, there is a limitation that we only have the evidences the documents founded inside of the statue and the historical records about invasions by the japanese raiders around the time that the statue made. Secondly, as to whether or not to acquire ownership of Kanonji acquired possession by looting, as long as there is no proof that Kanonji gained ownership by legal transaction, only the acquisition of ownership under the law, such as good faith acquisition or legal prescription, can be needed to review. However, it can not be proved that Kanonji started taking possession through transaction with japanese raiders who robbed this statue of Buddha, it is difficult of Kanonji to obtain ownership by goodwill acquisition as Kanonji was a private temple owned by the head of japanese raiders who plundered this statue. Third, in the event that the Korean temple recognized as the original owner, it will be able to recover the occupancy of the statue by the claim for delivery of confiscated goods or right to request a return to the Korea government. From the viewpoint of cultural nationalism and cultural internationalism, as mentioned in the introduction, the statue should also be recognized as belonging to the Korean temple, the place where it is originally located. In terms of cultural internationalism, it is more important to maintain and preserve in the Korean temple, which is trying to recover ownership of the statue rather than being left without any attention and protection from japanese unmanned temple. It is highly persuasive about Korean temple's claim that the value of the statue can be expressed at the highest level.