반인도불법행위에 대한 국가면제이론의 적용과 소송법적 과제 -위안부 사건에 관한 하급심 판결을 중심으로-

Since World War II, legal remedies for war crimes made during the Japanese colonial period have not been adequately provided. Comfort women victims filed a lawsuit for damages for illegal acts directly against Japan on August 8, 2013, and December 12, 2016. As a result, in January and April 2021, the lower courts reached the opposite conclusions. The judgment in favor of the plaintiff was confirmed because of Japan's inaction. On the other hand, the victims appealed against the judgment they lost. Attention is being paid to the decision of the appeal in the future. The above two sentences concluded other solutions whether customary international law that recognizes the exception of state immunity in the case of unlawful acts against humanity had been established, whether or not the existence of jus cogens norms under international law, and whether superiority over customary international law can be recognized. It may be judged that it is premature to recognize the customary international law that allows the exception of state immunity in the case of torts against humanity, considering the current state of international conventions and the level of implementation of most countries. The jurisprudence that excludes the grant of state immunity in case of violation of jus cogens norms under international law has been repeatedly adopted in several countries, including Italy and Greece, though. Even if it is not adopted, many judges continuously support it with minority and dissenting opinions, so the judgment seems quite transitional. It is judged that the above legal principle of exclusion of state immunity is a process that is steadily building up the national practice until it is established as international customary law, accompanied by legal conviction. In addition, given the specificity of the relationship between Korea and Japan and Japan's awareness and response level for the relief of the comfort women, if the victims' direct claims for damages to Japan through the civil court are blocked by the state immunity, the way to recover of the victims' damage is going to be distant. The 2016 Gahap 580239 case of the Seoul Central District Court, which concluded that the plaintiff lost (dismissed), failed to reach an advanced conclusion in the process of grasping the current valid customary international law on state immunity. It is only a relatively safe interpretation within the existing framework of state immunity, and it is regrettable to develop its logic. In judging customary international law in this case, the jus cogens norm under international law should be considered as the superior norm. Human rights are a universal concept and should be treated as guaranteed regardless of each country's political, economic, or cultural differences. If a government violates the jus cogens norms, it is outside the boundaries set by the international community itself, so the privileges granted to that country should be confiscated. In addition, in this case, the exclusion of state immunity would be a conclusion consistent with the right to a trial guaranteed by Article 27 of our Constitution and the dignity and value of human beings guaranteed by Article 10 of the Constitution. On the other hand, the legal basis of our Supreme Court decision is vaguely based on customary international law, international law, or international practice, so it can be seen that the legal stability is weak. Therefore, like many other countries, Korea should consider membership in UNCSI and prepare relevant domestic legislation. Finally, even if customary international law judges that it has not reached the level that excludes state immunity, in this case, the court can suspend the litigation procedures by applying or analogically applying the provisions for suspension of litigation under the Civil Procedure Act. This can be a way to protect the victims' interests to interrupt the statute of limitation and prevent them from severely infringing the right to request a trial.