대일민족소송 기각결정의 국제법상 효과에 관한 연구

In a private capacity, more than 360 Korean plaintiffs had been injured under control of Japanese imperial aggression and colonial government from 1904 to 1945, brought an civil suit against Japan as a state defendant to the Japanese civil court, so called “National Civil Suit against Japan” on August 29, 1992. Unfortunately, however, the suit was dismissed by the Japanese Supreme Court on March 27, 2003. Even if the suit was dismissed by the Japanese domestic court, the fact that the Japanese Supreme Court dismissed the suit, created two significant legal effects in the light of international law. The one is an effect of exhaustion of local remedies, and the other is an effect of denial of justice. It is well established rule of international law that the exercise of the active diplomatic protection of a state is precluded as long as the remedies available under domestic law of the foreign state have not been exhausted by the private party of the of admissibility on the international plane. And it is also well established rule of international law that a state is responsible as a result of the fact that in a manner incompatible with to international obligation of the state, the alien has been injured by the judicial organs, denial of justice, properly so called. Denial of justice includes not only refusal of a judicial authority to exercise its functions but also wrongful delay in giving judgement and manifestly wrongful judgement. As a result of the dismiss of the suit, the Korean Government authorities were entitled to exercise diplomatic protection, on the one hand for the injured nationals by the Japanese imperial authorities from 1904 to 1945, and on the other hand for the injured nationals by the japanese judicial authorities’ denial of justice, from 1992 to 2003. It is urgently necessary for the Korean Government authorities to exercise active diplomatic protection in order to liquidate the unhappy past and to reestablish the progressive future.