공관지역에 관한 민사소송에서의 재판권 면제: [대상판결] 대법원 2023. 4. 27. 선고 2019다247903 판결

If the immovable property owned by the sending State falls within the diplomatic premises, jurisdictional immunity would be an issue in civil proceedings of the receiving State concerning it. The grounds for immunity could be diplomatic immunity and State immunity. These two immunities are separate regimes, and diplomatic immunity should be considered first as a special law. The Vienna Convention on Diplomatic Relations only provides for immunity from enforcement in respect of diplomatic premises and does not provide for general immunity from jurisdiction. It is difficult to apply the rules on diplomatic agents to the sending State itself. Therefore, diplomatic immunity does not apply to immovable property owned by the sending State. In the context of State immunity, the problem is that immovable property has traditionally been recognised as an exception to immunity. However, in the light of changes and developments in the theory of State immunity and diplomatic law, it is difficult to conclude that the traditional exception can be directly applied to diplomatic premises. This can be evaluated as lacunae in the law, and immunity for diplomatic premises may be granted primarily on the basis of whether the performance of diplomatic functions is impeded. However, the various circumstances of the case must also be taken into account. The conclusion of the Supreme Court can be said to be valid. However, it is regrettable that the reasoning was not explained in detail. To overcome this, more research is needed on the domestic application of customary international law.