외국을 피고로 한 민사재판에서 관할권 면제와 국제법상 강행규범 문제: 위안부 피해자 손해배상청구 사건에 대한 시사점

This article addressed the problems of jurisdictional immunity and international jus cogens and the case concerning tort claims by the comfort women victims (CWVs) during World War II before the Korean courts. According to customary international law, jurisdictional immunity has nothing to do with jus cogens. Moreover, the 1965 Korea-Japan Claims Agreement clearly stipulates: “claims” of Korean nationals against Japanese government and its nationals are completely and finally settled. There is no doubt that the 1965 Agreement is a lump-sum settlement agreement. Accordingly it is the Korean government that bears the responsibility to compensate Korean CWVs’ claims. Indeed, the Korean government has compensated CWVs through special domestic legislations. In addition, in 2015, the Korean government and the Japanese government agreed that CWVs’ individual claims will be finally and completely settled. In order to implement the 2015 agreement, the Japanese government transferred one hundred million yen to the Korean Government. The courts should carefully consider all of these factors in deciding the issue of jurisdictional immunity.