국제법 상 국가면제규칙의 국내 도입에 관한 입법론적 고찰

In international law, state immunity (or sovereign immunity) has been recognized as a general rule to protect the state’s government and property within a national jurisdiction of any other state, which restricts the execution of national jurisdictions over other states. This rule of immunity which has conventionally been divided into two categories – the rule of absolute immunity and rule of restrictive immunity, was capable of causing unpredictable and substantial risk to individual litigants dealing or making a contract with a foreign sovereign state, even in the cases of wrongful measures by the foreign state such as an unjust or unjustifiable breach of the contract, particularly under the classical rule of absolute immunity. Consequently, most states have recently supported and adopted the rule of restrictive immunity, instead of the traditional rule of absolute immunity, to protect individuals who are capable of remaining in uncertain and unstable positions. Furthermore, regional and international conventions as well as many domestic laws of the US, UK, Canada, Australia, etc. are adopting the rule of restrictive immunity. Introduction and application of the rule of restrictive immunity can be a crucial matter to protect our nationals. Nevertheless, unlike other countries, Korea doesn't have a domestic legal basis for the rule of state immunity yet. Although there has been a possibility of the establishment of the rule of restrictive immunity in judicial practice because Korean national courts have recently decided several rulings according to the rule of restrictive immunity, the necessity of legislation of the rule of restrictive immunity has been emphasized in light of the other states handling the issue with legislative measure. Based on this recognition, this research paper particularly reviews not only the 「US FSIA」 and 「UK SIA」 as representative legislations of states but also 「European Convention on State Immunity」 and the 「United Nations Convention on Jurisdictional Immunities of States and Their Property」 as major codification cases of the rule of state immunity. Through this consideration, this paper examines and suggests a basic direction, standard, and necessity of legislation of the rule of restrictive immunity in Korea. The author expects the discussion in this paper to somewhat contribute to setting up a basic direction of legislative policy for the introduction and application in accordance with international trends and standards of the rule of restrictive immunity.