서산 부석사 불상의 소유권에 관한 대법원 판결의 분석과 평가- 대법원 2023. 10. 26. 선고 2023다215590 판결을 중심으로 -

In 1300, a Buddhist statue was looted from Korea by Japanese pirates. It was smuggled back to Korea by Korean thieves in 2012. In the subsequent lawsuit over the ownership of the statue, the Supreme Court of Korea ultimately recognized the ownership rights of the Japanese temple, Kannon-ji. The primary issues raised in the lawsuit included: whether the Buddhist temple, Buseok-sa, had the standing to sue; whether the Goryeo Dynasty's Buseok-sa in Seoju and the current Buseok-sa in Seosan were the same legal entity; the applicable governing law for the statue; and whether the acquisitive prescription had been completed by Kannon-ji. The Supreme Court ruled as follows: First, it recognized that the current Buseok-sa in Seosan maintained and succeeded the same identity as the Goryeo Dynasty's Buseok-sa in Seoju, which had originally acquired the statue in the 1330s. Second, regarding the applicable governing law for the statue, the court ruled that Japanese law applied according to the conflict of laws rules at the acquisitive prescription was completed. Third, it recognized that Kannon-ji had completed the acquisitive prescriptions of immovable property under the presumption of frequent occupancy under the provisions of the Japanese Civil Code and acquired ownership. However, it can be argued that the Supreme Court became overly focused on the issue of when Kannon-ji acquired its legal personality, which was used as the starting point for the presumption of exclusive possession. There is room to argue that prior to Kannon-ji acquiring its legal personality and after the statue was looted, the possession could be considered to be held by another. Moreover, although the contributions made to establish Kannon-ji as a legal entity are unclear, it is difficult to find the conclusion that the possession was converted to exclusive possession through the formal procedure of acquiring a legal personality to be persuasive. Globally, there is a growing trend to recognize the rights of the country of origin in cases of looted cultural property. If this global trend is applied to this statue, the only justification for it being in Japan was the looting, and in the current era, where the era of looting has ended, it could be argued that it is the duty of civilized nations and a religion to return the statue to its original place. To this end, it is necessary to actively consider enacting special laws or exceptions regarding looted cultural property. Specifically, there is a need to actively consider options such as giving priority to domestic law in determining the governing law for looted cultural property and establishing a provision to sever the legal relationship after the looting and restore the pre-looting rights relationship when a looted cultural property is brought into the country.