해외 문화재 등의 국내 전시에 대한 법적 규제 ― 문화행정법의 새로운 과제 ―

In the view of the constitutional ideology that pursues the cultural state, legislative deficiencies arise in the field of cultural administrative law which embodies this. Even if we try to bring in cultural assets, museum materials, and artworks, which are located in the foreign countries, in Korea, it is not ready for the legislation on the Culture Administrative Law. That is significant problem. Recently, the countries that have a lot of cultural assets, such as Japan, France, and Iran etc, have presented us with legal conditions for legal protection of these items as conditions for renting for exhibitions in our country. Although the principles of a cultural state are declared in the Constitution, there is a lack of legislation that can harmonize the Cultural Rights in the field of cultural administrative law that embodies these constitutions. Therefore, it is very difficult for the Korean people to have access to exhibitions in Korea for diverse and abundant overseas cultural assets, overseas art objects, and overseas museum materials. How can we find solution for these issues legitimately? Legislation for the prevention of foreclosure of cultural properties is intended to ensure that even if exhibited cultural assets are not seized, it is a “Legal Instrument” that can promote exhibition and exchange. This does not deny the legitimacy of restitution, such as plundering, deception, and forcibly exported cultural properties. However, the return of it can be very long time because political, diplomatic and economic problems are complex entangled. Therefore, there is a public duty in the cultural country that provides an opportunity to enjoy the culture through the exhibition separately from the resolution of the dispute. The way of ‘Exhibition after return’ takes a long time to resolve the dispute and is costly. It is very unclear whether the objective of exhibiting cultural assets will be achieved. Therefore, to be able to take the way of ‘return after the exhibition’ is to resolve the conflicting values harmoniously. For this purpose, there is a need to make temporary protected exhibit of cultural assets from seizure possible so that they can pursue harmoniously while respecting conflicting values such as justice for return of it and cultural rights. Return of ownership is a permanent task, but the exhibition of cultural properties is a tentative task. Not only is it logically compatible, it is not necessarily against the legal sense. Therefore, I would like to create and present the legislation that is lacking in the specific cultural administrative law field. The Ministry of Culture, Sports and Tourism shall establish discretionary rules for the protection of these items and propose legislation on procedures, deadlines, and details. I also tried to provide a legal theoretical basis for the field of cultural administrative law. In particular, the ‘Steering State’ and the ‘the Principle of the Distance’ that should be applied to the Cultural State. It is proposed as a way of approaching the cultural realm, in which the cultural autonomy should be respected and exceptionally intervened by that principle.