외국 문화재의 한시적 압류면제법제 도입방안

초록

Immunity from seizure for cultural property can help remove the reluctance of lenders to temporarily send cultural property abroad for exhibition. “Whether based on the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property”(“the 2004 UN Convention”) or on principles of customary international law, determining the scope of immunity from seizure for state-owned cultural property on loan raises several issues. The first issue concerns the definition of “State” and “property” for the purposes of the Article or Principle in question, which is to some extent related to the concept of “State property”. The second question concerns the scope of the exception. The third question concerns the limits of these exceptions. In 2018, a bill to amend “Museum and Art Gallery Promotion Act” ro institutionalize a temporary exemption from seizure of the Korean cultural property located abroad in connection with its importation to Korea and exhibition in Korea was submitted to the National Assembly, but was not passed before it. The international trend of exempting state cultural property from seizure is generally accepted, with the 1972 European Convention on State Immunity and the 2004 United Nations Convention, which has not yet entered into force, adopted at the international or regional level. However, each country that has adopted immunity has different types of immunity, types of cultural property subject to immunity from seizure, procedures for applying for immunity, scope of state immunity, and duration of state immunity. Therefore, it is necessary to delve into them from the perspective of comparativists and pursue the direction of state immunity suitable for Korea. Most of the cultural property looted or stolen from Korea was illegally taken to Japan, the United States, France, China and other countries. As a country that experienced Japanese colonisation from 1910 to 1945, Korea has been cautious in adopting immunity from seizure laws. As many countries, including Korea, are cautious in adopting anti-seizure laws, anti-seizure laws must reflect the position of the country of origin of the looted or stolen cultural property. In this regard, it is necessary for the countries of origin of looted or stolen cultural property to enact effective and feasible legislation that fully recognizes the principle of sovereign immunity while preserving the dignity of cultural property. Otherwise, it will be difficult to achieve a broad consensus among the countries of origin of cultural property and the Koreans. Also, the application scope of the temporary anti-seizure law does not have to be limited to cultural property. It can also include artworks. Therefore, it is important to note that the introduction of a temporary anti-seizure law is necessary not only from the point of view of the country of origin of cultural property, but also to revitalize the exhibition of foreign artworks in Korea. Since it is a temporary exemption from seizure, it would be appropriate to specify the duration of the anti-seizure. In addition, it is possible to consider enacting a temporary anti-seizure law limited to foreign artworks, such as the Japanese law.

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