약탈문화재의 압류면제에 관한 헌법적 검토

Recently, a study was carried out to legislate the Immunity(exemption) of temporary seizure of Korean Cultural Heritage Overseas for the revitalization of the exhibition, and a bill to amend the “Museum and Art Gallery Support Act” was introduced to the National Assembly to institutionalize the seizure immunity(exemption) system. The international position on the seizure immunity system has is also generally changing positively, and the 1972 European Convention on State Immunity and the 2004 United Nations Convention on Jurisdictional Immunities of State and Their Property have been concluded. And Many countries are participating in the Convention or engaging in multilateral treaty to promote the display of cultural properties. The Constitution of Korea prescribes the principle of cultural state and guarantees the right of cultural equality as fundamental rights. However, the cultural right, the right for enjoyment of culture, and the right for enjoyment of cultural properties guaranteed by the Framework Act on Culture and the Cultural Heritage Protection Act can be interpreted as statutory rights of citizens and local residents rather than as fundamental rights in the Constitution. Therefore, the Immunity seizure for the domestic exhibition of Korean cultural heritage overseas can be seen as positive in terms of the principle of cultural state and guarantee of the people’s rights. However, looted cultural properties taken out by illegal looting can be subject to restitution but can not be subject to immunity seizure. The immunity seizure system can make mistakes in acknowledging the ownership of the occupied state, and there is room for misapplication. In order to revitalize domestic exhibitions of Korean cultural heritage overseas, it is possible to allow immunity of seizure in terms of ‘common heritage of mankind’, but it is possible to make clear the constitutional basis as ‘national cultural heritage’. It is necessary to take a careful approach to immunity seizure of looted cultural properties which is supposed to be unconstitutional in Korean Constitution which presupposes the principle of cultural state and anti-imperialist ideals and guarantees property rights. The immunity seizure shall be determined by carefully examining the route of export of the cultural heritage. Passively, cultural properties that are obviously illegal to flow out, or cultural property in dispute with ownership are excluded from immunity seizure, and cultural property exported by law such as diplomacy, trade, or donation should be exempted from seizure. In other words, it is necessary to clarify the requirements of the immunity seizure cultural properties, and to list the immunity seizure cultural properties. A more careful design is required in order to go through procedural steps such as deliberation by the deliberation committee and consultation of cultural property experts.