일본 관음사(観音寺)에서 도난된 불상(佛像) 반환 문제에 대한 고찰 -대전지방법원 2017. 1. 26. 선고 2016가합102119 판결 평석을 겸하여-

This article aims to address international law issues how the problem concerning the return a stolen Buddhist statue possessed by a Japanese temple, Kannonji, to the Japanese government under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property should be solved. In 2012, the statue was stolen from Kannonji and illegally imported to Korea. In 2013, the Japanese Government asked the Korean government to return the statue under article 7(b)(ii) of the Convention. If the conditions of article 7(b)(ii) are satisfied, the Korean government is obliged to return the statue to the Japanese government. While the Korean government has not decided whether the statue must be returned to the Japanese government under article 7(b)(ii), the Daejeon District Court ruled that the government must return it to a Korean temple – Buseoksa – that had argued the ownership of the statue. The government, arguing that Buesoksa has not the ownership, appealed the decision before Dajeon High Court. However, the ownership of the statue is not an issue of the return under article 7(b)(ii). Even if the statue is returned to Japan under the Convention, Buseoksa may bring a civil law action against Kannonji because article 7(b)(ii) itself does not affect an ownership dispute between individuals. If the Korean government decides to return the statue to Japan under the Convention, the Korean court is required to respect it. Otherwise, the dispute concerning the Convention between Korea and Japan will take place. Then the dispute should be solved in international tribunal based on two countries’ agreement. In dealing with the problem of returning the statue, above all, the Korean government is required to decide the issue of article 7(b)(ii) first, regardless of the ownership dispute between Buseoksa and Kannoji.