강제징용배상에 관한 일본판결의 승인 가부

The primary questions of the two cases at hand are whether the Japanese judgments that have dismissed the claims seeking compensation for damage and payment of the 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. The Supreme Court Judgments held in their reason for judgment that the Japanese rule of the Korean peninsula was an illegal occupation from a normative viewpoint and that Korea’s diplomatic protection for the plaintiffs as well as the individual rights of the plaintiffs were not extinguished by the Korea-Japan bilateral treaty entered into in 1965. The Supreme Court Judgments have great importance from historical and legal perspectives. Recognition of the Japanese judgments on the first causes of action based upon the slave labor could be regarded as against Korean ordre public if first, the slave labor apparently based upon the Japanese law during the colonial era constitutes a tort under Korean law (this is related to the civil law, public international law and private international law issues) and secondly, the recognition of the Japanese judgments is against the fundamental principles of Korean law. In this article, the author discusses mainly the issues of private international law or international civil procedure law and briefly touches upon some substantive law issues. The author thinks highly of the conclusions of and the reasons for the Supreme Court Judgments. In particular, the Supreme Court Judgments deserve much respect in that they based their conclusions on the Constitutional values, which had not drawn much attention in the past. That being said, the Supreme Court Judgments cannot avoid criticism because they have confused the ordre public in the context of recognition of foreign judgment set forth in Article 217 of the Code of Civil Procedure and the ordre public in the context of application of foreign law set forth in Article 10 of the Private International Law Act of Korea.