외교공관지역의 불가침성과 관할권 면제의 한계

This study examines the limits of inviolability and jurisdictional immunity concerning diplomatic mission premises. A diplomat of the sending state is a representative dispatched to the receiving state on behalf of the sending state. In other words, they should not be seen as just a foreigner but as a diplomatic institution carrying out official duties that represent the sending state. Diplomat and a foreigner have completely different scopes and presence of privileges and immunities from an international legal perspective. Similarly, diplomatic missions enjoy different privileges and rights, including tax exemptions, compared to a private residence owned by an individual citizen of the Republic of Korea. However, this reality means that the world is facing globalization and moving toward a single international community. At the same time, it indicates that the number of conflicts with the private interests of individual citizens of the receiving state, diplomats, and diplomatic missions is increasing at a considerable rate. This signifies that the privileges and immunities of diplomatic missions and diplomats—their inviolability and jurisdictional immunity—supported by customary international law and the Vienna Convention on Diplomatic Relations (VCDR) as a treaty, have reached their limits. Furthermore, these privileges and jurisdictional immunities have created a necessity for international law to actively step forward and resolve the issues. The citizens of the receiving state cannot perpetually bear the burden of property damage and disadvantage. It is time for international law to take an active role. In the face of the significant hurdle of immunity from enforcement jurisdiction, existing solutions have been inherently limited. Previous solutions that lack practical benefits—merely because compulsory execution is deemed impossible—such as the psychological pressure from the res judicata of a judgment based on the recognition of only adjudicatory jurisdiction, the suspension of prescription and limitation periods, the waiver of state immunity and diplomatic immunity by the sending state, the provision of an impetus for voluntary compliance by the sending state, the initiation of a civil suit within the sending state, or filing a suit in the courts of the receiving or sending state after the termination of the diplomatic status—are, in fact, devoid of substantial legal utility. Ultimately, all damage becomes practically impossible to recover, which leads to a negative perception of the sending state’s diplomatic missions and diplomats among the receiving state's citizens and a contraction of business transactions due to passive engagement. Furthermore, it negatively affects the development of the international community and the promotion of common interests. The author does not believe that the realistic proposals presented for securing civil enforcement rights—namely, ensuring flexibility in attaching diplomatic mission bank accounts, establishing a mandatory system for deposit payments to the receiving state, and the mandatory creation of comprehensive insurance for the sending state's diplomatic mission in the receiving state—will perfectly solve these problems. However, these precautionary measures might be the best way to minimize friction between states and solve the various existing problems mentioned above without resorting to “necessity” as a circumstance precluding wrongfulness, which the receiving state should only use as a last resort.