‘고려 서주(瑞州) 부석사’ 관음상 사건과 국제문화재법

In this article, the authors (1) commend the judgment for its thorough examination and determination of the relevant legal issues as a matter of private international law; (2) note that the applicability of the 1970 UNESCO Convention to the present case appears to require further examination; and (3) conclude that the State has, to date, generally fulfilled its obligations, responsibilities, or “necessary measures” under Article 20 of the Cultural Heritage Protection Act. However, it is also true that the current relevant laws have certain limitations. In the short term, the authors believe that conversation and negotiation efforts, in addition to judicial remedies, should be pursued, and in the longer term, the international community should work to develop a uniform substantive law governing the issue of pre-modern looted cultural property that predates the 1970 UNESCO Convention. Such a uniform substantive law should include (1) clear and predictable rules for determining the country of origin (or source country, with an emphasis on the eventual destination of the return); (2) the allowance, scope and requirements of the defenses, such as acquisitive prescription, against return to the country of origin; and (3) a system for reconciling the private rights with the responsibility of states as subjects of (public) international law. In this context, the subject judgment and the case are highly research-worthy and allow us to consider all these issues. The authors hope that this study will be followed by further research and efforts in the future, leading to the realization of true restorative justice in the field of international cultural property law.