헌법재판을 통한 일제강점기 피해 구제 가능성과 한계

The types of damage that occurred during the Japanese colonial period are very diverse, but the factual investigation is still sluggish and relief is insufficient. A representative example is the damage to life, body, and property suffered by those who were forcibly mobilized by Japan as soldiers, military personnel, laborers, and “comfort women” during the period before and after World War II. Victims have been seeking various means of relief since the establishment of the government of the Republic of Korea until now, and the Constitutional Court of Korea has also accumulated many precedents in this regard. The purpose of this article is to analyze and evaluate these precedents and examine the usefulness and limitations of constitutional complaints and adjudication on the constitutionality of statutes in relation to the relief of damages during the Japanese colonial period. In this article, cases where adjudication on the constitutionality of statutes was requested for ‘Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation’ (hereinafter referred to as ‘the Agreement’) or Korean domestic laws related to victim relief were reviewed. Next, cases where constitutional complaints were requested regarding the exercise of certain public powers, legislative and administrative omissions were reviewed. In this regard, reference has been made to the academic debate on the scope of application of the Agreement. The Constitutional Court is restricted from advancing to a review on the merits only when the legal requirements are met. Moreover, even if the Constitutional Court accepts the claim, the perpetrator, Japan or its nationals, may be unwilling to provide relief to the victims because of the existence of the Agreement already concluded. Despite these fundamental limitations, the Constitutional Court can provide substantial damage relief, and this article attempts to examine the possibility.