1970년 유네스코협약 이행입법과 관련한 국제사법 쟁점

Since most provisions of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (hereinafter the “Convention”) do not have self-executing nature, each Contracting State to the Convention has a wide discretion to enact the implementation legislation of the Convention. This article analyzes implementation legislations of several Contracting States from the perspective of private international law. (i) As to international adjudicatory jurisdiction of the lawsuits claiming the return of illegally exported cultural property, Switzerland has a clause acknowledging jurisdiction at the place where the cultural property is located as well as at the place where the defendant has an address. As to the scope of the plaintiff, Netherlands extends it from the Contracting State of origin to the private persons who has a lawful right. (ii) As to the scope of import prohibition of illegally exported cultural property, it needs specific designation by each Contracting State: Australia and Belgium do not require a specific designation by other countries; the United States and Switzerland require a specific designation under the bilateral agreements mechanism; and Korea, Germany and Japan require a specific designation by making a list based on the importance of cultural property. (iii) It is possible to understand export controls of cultural property or state ownership provisions of cultural property as internationally mandatory rules. It is also possible to apply lex originis or lex furti in replacement of lex rei sitae through general exception clause or public policy clause. For future legislation, Korea needs to make reference to above legislative examples of foreign countries if applicable.