전후 국가배상책임에 관한 국제사법적 고찰

• 영문명: A Study on the Postwar State Compensations in the Viewpoint of Private International Law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 이병화(Byung-Hwa Lee)
• 간행물 정보: 『비교사법』比較私法 제17권 제2호, 507~564쪽, 전체 58쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

After the end of World War Ⅱ, there is not yet any international in-depth discussion on issues of Japan's compensations for Asian victims of the Pacific War. Although it is 65 years that Korea was liberated from Japanese imperial regime, there were not yet so much remarkable achievements concerning Japan's liability for postwar state compensations. It is really unfortunate that there is not yet any full-scale study on aspects of private international law concerning such liability, although there has been steadily a series of discussions on postwar state compensation from the perspective of international law. Therefore, this study seeks to make general examinations into postwar state compensation from the perspectives of private international law. In the same context, it also intends to make a further analysis on Japanese courts' conventional postwar judgments on compensation for Chinese and Philippine victims of the Pacific War, so that it points out issues of existing judicial precedents concerning such compensation. In addition, this study seeks to address a variety of jurisprudential hypotheses concerning postwar state compensation, so that it may make a good chance to have a correct understanding about their rationales and limitations. On the other hand, this study adopts a perspective of comparative law to examine relevant legislations and judicial cases published in the United States, Germany, Austria, Japan and Korea, so that it may clearly identify the points in question concerning the determination of proper law on postwar state compensation. Furthermore, this study deals extensively with issues in intertemporal law beyond a boundary of piecemeal studies from the perspective of private international law, so that it may explore possible ways to resolve the question of temporal conflict as a challenging question out of resolution simply relying on the current system of private international law. In other words, this study seeks to clearly identify possible common and different points among private international law, intertemporal law and intersystematical law, and determine possible relationships between international law and prescriptive regulations. In addition, this study deals with characterization of legal matters in intertemporal law as well as issues of public policy with regard to relationships with postwar state compensation, so that it may attempt to re-construe major topics in private international law with regard to relationships with intertemporal law. Summing up, the further examinations hereof into postwar state compensation from the perspective private international law demonstrate that legislations and jurisprudential hypotheses across countries are generally based on lex loci delicti commissi in the determination of proper law. In reality, however, postwar state compensation involves a lot of issues requiring resolution, such as matters of intertemporal law and the correction of extinctive prescription system as a controversial question of international law. Hence, it is required for follow-up studies to take more multilateral and comprehensive perspectives to pose questions on postwar state compensation than now.

목차

Ⅰ. 서론

Ⅱ. 학설의 유형

Ⅲ. 비교법적 검토

Ⅳ. 시제법상의 문제점

Ⅴ. 결론

키워드

Postwar State Compensation Private International Law Proper Law Lex Loci Delicti Commissi Comfort Women Litigations Intertemporal Law Interpersonal Law Intersystematical Law Characterization Public Policy.