중대한 인권침해와 국가면제의 예외

Abstract

Even now in 2017, the 72nd year since the end of the Second World War, still, no legal remedy has been made, concerning the war crimes committed during the Japanese colonial era. The victims constantly insisted on the legal settlement against the Japanese government and asked the Korean government for the exercise of the diplomatic protection till now. Besides, Korea, Japan, and the United States have filed civil suits with Japanese government or companies being the plaintiff themselves. Even today, in the Seoul Central District Court, there is a pending suit for damages, raised by the ‘comfort women’ victims due to the illegal act with the Japanese government as the accused. Concerning the conveyance of the litigation documents of this case, Japan refuses the conveyance of the documents, insisting on the principle of state immunity in civil trials. Then, could the foreign country enjoy the immunity of international jurisdiction in the cases of significant human rights abuse like the crime of Japanese military sexual slavery? Does this really meet the legal justice? This case is the first case of the domestic court filed against a foreign country, which is a sovereign country for the reason of significant human rights abuse. First, this study investigated the concrete relevance to the fact in the crime of Japanese military sexual slavery, focusing on the records of the war crimes trials of the Second World War. Next, this study introduced the precedents in Europe, which established civil jurisdiction in the cases of significant human rights abuse, civil jurisdiction excluding the assertion of state immunity, and lastly, this study summarized the reasonable ground on which the assertion of sovereign immunity should be excluded in this case. As a war crime recorded in war crimes trials, Japanese military sexual slavery, so-called ‘comfort women’ crime makes the Japanese government’s claim lose its footing. Nevertheless, since the war ended, it has not been settled over a quarter of a century, which proves the degree of the continued negligence of women’s lives. Even in the cases of significant human rights abuse, it seems that the acknowledgment of the exception of state immunity has not yet received international approvals through international laws or international practices. Nevertheless, foreign precedents on significant and massive brutal human rights abuse are influentially insisted as minority opinions, so it is necessary to conduct a study of how to utilize this ground in the case of Japanese military sexual slavery. This is not an issue limited to the case of Japanese military sexual slavery, currently pending in trials. This is the true constitutionalism and the true performance of the role of the law, severing the link of the continuing brutal war crimes against women and children. Beyond the protection of the native people of the state of the forum, the universal role in the protection of human rights is not different at all, even in the civil suits that deal with the rights in the private laws. Hopefully, efforts such as the procedures at international alliances and international organizations and lawsuits in the court of the assaulter country will be exhausted, and as the ultimate step, righteous judgment will be made in the civil suit filed at the domestic court chosen by the victims.