외국국가의 재판권면제에 관한 연구― 일본군 위안부 피해자들의 손해배상청구소송과 관련하여 ―

Mrs. Bae, et al., 11 korean victims of Japanese military sexual slavery during World War Ⅱ(“Comfort Women”, so called by Japan) petitioned to Seoul Central District Court for commencing mediation procedure between petitioners and Japan, claiming for damages, on 13th August 2013. Under the rule of state immunity, the customary international law, foreign state have immunity from jurisdiction of other states in principle. Thus, the court have to consider whether Japan enjoy state immunity, before the examination on substantive argument. In this case, it is at issue that, ① whether the torts committed by Japanese military meet requirement of applying state immunity, ② whether those deeds are sovereign, public act or commercial, private act, ③ whether the court have discretion to deny state immunity because the foreign state violate international law seriously or violate jus cogens(peremptory norm) of general international law. As to above issues, this thesis reviews treaties, legislation cases, theorem, judicial precedents of various states or international organizations. Recently, some nations and international organizations codified the requirement of applying state immunity by statutory laws or treaties. But Korea, as the other states of continental law, regulates state immunity by theorem and precedents. On the requirement of applying state immunity, by and large, legislation and precedents of various states, the European Court of Human Rights(ECHR) and the International Court of Justice(ICJ) are converging, reflecting the theoretical transition from the absolute theory of state immunity to the relative theory of state immunity. According to the relative theory of state immunity, state immunity is granted if relevant act is evaluated as sovereign or public act. Concerning reasons for judgement of various precedents which dealt with foreign state's tort during war, the nature or purpose of Japan's torts to petitioners also seems to sovereign or public act, at first sight. If so, it is probable that state immunity is recognized. Once, the supreme court of Italy and Greece judged that Germany was not entitled to state immunity for German occupying forces' deeds during World War II was serious violations of human rights and violations of jus cogens cannot be estimated sovereign act. But the ICJ declared that there are no customary international law which deprives a state of it's immunity, by reasons of serious violations of human rights or violations of jus cogens. The ECHR also decided that state immunity cannot be denied for these reasons. In consideration of responsibility of Japan for sexual slavery during World War Ⅱ, there are many politically and historically sensitive issues, and finding of facts is also difficult. Therefore, the diplomatic, political solution between Korea and Japan is the most desirable. Yet legal solution is inevitable, resolution by mediation or conciliation is more suitable than by judgment. Many scholars in international law and the minority opinions of various precedents expressed their views that the serious offender of human rights or violator of jus cogens cannot insist their immunity(argument of above-mentioned, treaty exception, implied waiver and etc.). And precedents of ICJ and ECHR seems to leave room for development of theory which restrict state immunity. International society also press Japan for solution to recover damages for sexual slavery. Taking into account reasons above, it is important to pay sharp attention to trend of theory and precedents, join the United Nations Convention on Jurisdictional Immunities of States and Their Property or demand cooperation from international society. And it is necessary to legislate on state immunity to clarify the requirement of applying state immunity like Foreign Sovereign Immunities Act of the United States.