한국인 ‘위안부’의 일본국에 대한 손해배상청구소송의 저촉법적 연구

The tort claims brought by Korean ‘Comfort Women’ against the Japanese government in Korean courts involve a wide range of conflicts-of-laws issues as the subject matter of the claims arose during the Japanese occupation of Korea. This paper analyzes the various conflict-of-laws and intertemporal law issues that could have been raised in the 2021 and 2023 judgments of the Korean courts (henceforth “The Judgments”) that upheld the claims of Korean ‘Comfort Women’. First, this paper examined the direct applicability of Korean Private International Law to the case. When a region within a country becomes independent and constitutes a separate state, the conflict of laws that was in effect in the region when the tort was committed should be applied under the principle of invariability. Therefore, based on the view that Korea and Japan were a single state, but Korea constituted a separate legal territory, the Common Law(共通法) governing interlocal conflict of laws between Korea and Japan at the time should be applied to the case. On the other hand, according to the view that Korea and Japan never constituted a unitary state, Korean Private International Law should apply. The Judgments appear to be premised on the latter. Second, this paper determined which conflict of laws apply in an intertemporal context. If Common Law applies, Japanese Civil Law applies according to Article 2, paragraph 1 of the Common Law. If Korean Private International Law applies, applying its chain of transitional provisions leads to the conclusion that the Horei(法例) that was in effect in Korea at the time should be applied. The Judgments reached the same conclusion as the latter. Third, this paper examined which country's governing law should be designated according to the interpretation of the Horei. Since the torts in the case were caused by the systematic illegal acts of the Japanese government, they should be considered as a single legal category or issue. The tort is a scattered tort with the consequence of the act occurring in multiple locations, and the rule for determining the governing law for scattered torts is to link it to the most closely related country under the modified unitary connection theory. If so, the “place of tortious act,” which is the connecting factor in Article 11(1) of the Horei, should be interpreted as the most closely related country, and thus Korean law should be designated as the governing law as the case involves Korean victims. In addition, under Article 11(2) of the Horei, either Korean law, as lex fori, may be cumulatively applied or Japanese law may be cumulatively applied through its literal interpretation. However, Article 11(3) of the Horei does not apply cumulatively. The Judgments held that while multiple laws may be applicable, the Korean law was applicable because the plaintiff was seeking tort liability under Korean law. The Judgments did not address the issue of cumulative application of Japanese law under Article 11(2) and (3) of the Horei. Fourth, whether Korean or Japanese law should apply regarding the establishment of the tort, extinctive prescription, or the exclusion period should be resolved by the transitional provisions of the applicable law. If the Korean Civil Code and the Japanese Civil Code at the time that the tort was established are applied, the claims of the Korean ‘Comfort Women’ are inadmissible due to the State Immunity Doctrine, but there are arguments against it. Furthermore, if Korean law is designated as the governing law, the exceptions to extinctive prescription that the Korean Supreme Court has established may apply. However, if the latter part of the Article 724 of the Japanese Civil Code is interpreted as an exclusion period, the exception to extinctive prescription may not apply considering the exclusion period’s legislative purpose. Although the issue of extinctive prescription was not addressed by The Judgments as the issue was not raised in the proceedings, if the latter part of Article 724 of the Japanese Civil Code is an exclusion period, the Judgments should have reviewed ex officio whether the period of exclusion had passed. Finally, if Korean law or Japanese law is applied as the governing law and the claims of the Korean ‘Comfort Women’ are inadmissible due to the State Immunity Doctrine, such result can be remedied by invoking the international or intertemporal public policy exception. However, in order to circumvent the State Immunity Doctrine, intertemporal public policy exception needs to be invoked as invoking the international public policy exception in itself is insufficient to circumvent the State Immunity Doctrine.