대마도에서 훔쳐 온 고려 불상의 서산 부석사 반환을 명한 제1심판결의 평석: 국제문화재법의 제문제

The Buddhist statue in the present case (“Statue”) was produced in Seosan, Korea and was enshrined in a Korean temple (i.e., which was held to be the Plaintiff in the Judgment in question), in 1330 and thereafter taken to the Tsushima Island through an unknown process and enshrined in the Japanese temple called “Kanonji” (“Japanese Temple”) around 1526. In October of 2012 several thieves had taken the Statue and illegally imported it into Korea. The thieves were subjected to criminal sanctions after being found guilty and the Statue was confiscated by the Korean Government. The Plaintiff filed a suit against the Korean Government requesting it to deliver the Statue to the Plaintiff. Based on the evidence submitted to the court, the Daejon District Court held that the Plaintiff is sufficiently presumed to be the owner of the Statue and rendered a judgment in favor of the Plaintiff. The author discusses the pertinent legal issues in the following order: First, the law applicable to the ownership of the Statue under the Korean Private International Law Act (Chapter Ⅱ). Second, the issues which arise under the applicable substantive law (Chapter Ⅲ). Third, whether the Korean Government is obligated to return the Statue to the Japanese Government under the Korea Cultural Property Protection Act and the UNESCO “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” of 1970 (“Convention”)(Chapter Ⅳ). Fourth, other related issues (Chapter V). In the former part of this article, the author comments on the Judgment in question (Chapters Ⅱ and Ⅲ). The present case raises various issues of international cultural property law, most importantly the determination of the owner of the Statue. The Japanese Temple may assert its ownership under the following grounds: (i) Since the Japanese Temple had maintained the possession of the Statue until 2012, the Japanese Temple is legally presumed under the Civil Act of Japan to be the lawful owner of the Statue. (ii) The Japanese pirate who robbed the Statue around 1526 has obtained ownership under the then current law of war and gave its ownership to the Japanese Temple by way of gift. (iii) Even if the Japanese Pirate had no ownership of the Statue, the Japanese Temple acquired ownership as a bona fide acquirer around 1526. (iv) Even if the Japanese Temple could not acquire ownership as a bona fide acquirer, the Japanese Temple acquired ownership as a person in possession by operation of the concept of Ersitzung (acquisition of ownership by lapse of time) some time after 1526, or at the latest some time after the entry into force in 1898 of the first Japanese Civil Act which introduced the concept of Ersitzung. The Judgment made a mistake by not dealing with private international law issues in the case. Since the Japanese Temple was legally presumed to be the owner of the Statue under the Japanese Civil Act as of 2012, the Court should have examined whether the legal presumption was rebutted before accepting the plaintiff’s claim. In addition, the Judgment made another mistake by not dealing with the doctrine of Ersitzung. The author hopes that the appellate court would render a judgment with correct reasonings. In the latter part of this article, the author deals with the issue of whether the Korean Government is obligated to return the Statue to the Japanese Government (Chapter Ⅳ). The Statue is a Japanese cultural property to which the UNESCO Convention is applicable. Under Article 7(b) of the UNESCO Convention, a State Party to the Convention is required (i) to prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution in another State Party to the Convention after the entry into force of the Convention for the States concerned, provided that such property is documented as appertaining to the inventory of that institution, and (ii) at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property imported after the entry into force of the Convention in both States concerned. Accordingly, the Korean Government should in principle return the Statue to the Japanese Government. However, if the Plaintiff were to be determined to be the owner of the Statue, the Korean Government can refuse to return the Statue until the Plaintiff has received from the Japanese Government just compensation.