약탈 문화재에 관한 국제분쟁 연구: 한국 문화재 반환을 중심으로

The question of how to return cultural properties that were taken out of the country is the answer to the question of who took the cultural property belonging to whom, when, and to what country, and how the cultural properties could now be returned by a particular country on the ground of the proper reason. In the past, during the imperial era, war, and confusion, many cultural properties were illegally exported or traded legally, and are now the object of illegal transactions. The dispute concerning the looting cultural property has the aspect of correcting the illegal property in the view of international justice as well as the nature of the dispute over ownership, as in the case of detainment of cultural property by the Nazi regime. In many cases, even now, the criterion of judging ownership or illegality is insufficient in international norms, and the debate on whether it is desirable in the international community to hold cultural property from the current state of possession to the countries of origin continues. Korea should quickly join the Hague Convention in 1954, the First and Second Protocols of the Convention in 1954 and the UNIDROIT Convention in 1995 to promote protection of international cultural property. In particular, Korea should keep international practices consistent with the principle that exported cultural properties should be returned to the country of origin. Korea should clarify the ownership of cultural property under domestic law. In accordance with the UNESCO Convention in 1970, it is necessary not only to continuously upgrade the list of cultural properties originating from Korea, but also to prescribe the ownership of each cultural property in accordance with the character of the cultural property and the situation in which cultural property was exported. The Korean government should pursue the policy to collect the exported cultural properties from abroad to Korea, as the way of “return” to the country of origin rather than the way of “restitution” for the (original) owner. As the UNIDROIT Convention provides, if Korean government collects cultural property, it must pay reasonable compensation to its owner, regardless of whether who is a foreigner or a national. It would be a way to recover the cultural properties hidden by the private sector, too. In consideration of the fact that most cultural property returns have been reached through diplomatic bargaining, it is necessary to establish a highly specialized cultural property return negotiation organization within the government. It seems to be desirable to resolve the dispute resolution method related to the return of loot cultural property by negotiation, mediation and arbitration at the committee composed of representatives of the same number of the two countries rather than the court litigation. In case of a domestic lawsuit, such as a Buddhist statue of a Korean Buddhist temple, if the international cultural property dispute is contained in the background, it should be judged by applying international convention as much as possible.