사할린 韓人의 歸還問題에 관하여

盧泳暾(Yeong-Don LOH) 大韓赤十字社 人道法硏究所 1991 人道法論叢 Vol.- No.10·11

한ㆍ중 간도영유권문제와 국제법상의 시효문제

노영돈(Loh, Yeong-Don) 백산학회 2005 白山學報 Vol.- No.71

China’s present possession over Gando(間島) is not lawful because of the invalidity of the so-called 1909 Gando Agreement which China considers as the ground for her lawful sovereignty over it. But the government of Korea have not yet protest against China, even after the establishment of diplomatic relationship with China in 1992. Prescription in International Law as a reason for the acquisition of a territory has no positive rule. However, the majority of writers on International Law recognize the necessity of prescription in international law as well as municipal law and the decisions of international tribunals quoted prescription to judge the sovereignty of the territory concerned. Hence therefore Korean Government should protest unlawful possession over Gando to China as soon as possible to discontinue prescription. There is no rule established about the duration for completion of prescription in international law. It differs cases by case. But in the case of Gando between Korea and China, the point of time to start the duration for completion of prescription, together with the length of time, calls special attention. After Gando Agreement of 1909 between Japan and China, Korea had annexed to Japan in 1910 and achieved independence from Japan in 1945, established sovereign state in 1948 but she had not diplomatic relationship with China until 1992. Therefore even though China’s possession over Gando started from 1909, the absence of Korea’s protest against it should be counted from 1992. Korean Government, anyway, is urged to protest to China.

중국의 두만강지역개발 및 출해권에 관한 연구

노영돈(Loh, Yeong-Don),이현미(Lee, Hyun-Mi) 백산학회 2011 白山學報 Vol.- No.89

The People’s Republic of China has been proceeding a development plan on Tumen River area in order to secure a way into the East Sea. UNDP firstly led the development project on these area with the People’s Republic of China and neighboring countries. That project, however, was not able to be continued due to the financial difficulty and noncooperation of concerned nations. In recent years, the Democratic People’s Republic of Korea and the Russian Federation are actively progressing a development plan based on Rajin-Hassan area. It will be an innovative change for Northeast Asian logistics system once the development plan is completed successfully. Meanwhile, China has played the most fundamental role for the development of Tumen River area. China recognizes that the development of 3 northeastern provinces is an essential part of valanced growth for chinese economic. It has made every effort such as ‘the Northeast Development Plan’ or ‘the Tumen River Area Development Project’ for developing these area over a long period of time. Foreign direct investment on these area has been expanded, transportation and logistics infrastructures are being aligned, and collaborative development with other nations around Tumen River is moving ahead smoothly. Despite of a strong will of China for developing 3 northeastern provinces, it is true that the development plan could not be substantially succeed without securing a way into the East Sea via Tumen River because it has no own way for getting into the sea. China has historically tried to achieve a stable right to the sea, especially using ports of the People’s Republic of Korea and the Russian Federation. Recently, China invests in repairing roads and railways of both countries and uses it directly for going forward sea. It necessarily demands cooperation of those neighboring countries. Once China succeed to settle a way out for the East Sea, it could be a major breakthrough in the development of the northeastern 3 provinces as well as in the valanced growth for the Chinese whole economic.

재일한인의 국적

노영돈(Loh, Yeong-Don) 백산학회 2009 白山學報 Vol.- No.83

Koreans in Japan are the ethnic Korean residents of Japan in the largest sense. But this expression in this article means those who have resided in Japan from before 1945 when Korea was set free from Imperial Japanese rule. Many of them were recruited to work in mainland Japan by forced mobilization during 1939-1945. When They were forcedly recruited, they were treated as subjects of the Empire of Japan, .as the result of the Japan-Korea Annexation Treaty in 1910. But following the end of World War II, they were treated as “liberated people” or “enemy nationals” by the SCAP, and treated as Japanese nationals as they had been, or foreigners by the Japanese Government. Afterward according to the Alien Registration Ordinance of 1947, Koreans were provisionally registered under the name of Joseon, the old name of undivided Korea. In 1948, the Republic of Korea(South Korea) and the Democratic People's Republic of Korea(North Korea) declared independence individually, and the new government of South Korea made a request to the SCAP, the occupying power of Japan then, to change the nationality registration of Koreans in Japan to “Daehan Minguk”, the official name of South Korea. Following this, from 1950 onwards, Koreans in Japan were allowed to voluntarily re-register their nationality as .“Daehan Minguk” or “Hanguk”, the shortened name of “Daehan Minguk”. In other hand the Japanese government officially deprived their Japanese nationality in 1952 by way of excuse of the San Francisco Peace Treaty and discriminated them through the nationality clause of various legal acts to lead them to naturalize into Japan. As a consequence, Koreans in Japan may be divided into three groups; Japanese Nationals, those who naturalized into Japan and their descendants, “Hanguk” Koreans and “Joseon” Koreans according to the Alien Registration. “Hanguk” Koreans and “Joseon” Koreans are granted the right of permanent residence in Japan by the 1965 treaty of normalization of Korea-Japan relations. “Hanguk” Koreans are evidently South Korean nationals residing in Japan but“Joseon” Koreans are de facto statelessness. Some of them are pro-North Korean, but the others neither pro-South Korean nor pro-North Korean even though they registered in the name of “Joseon” which is the shortened name of North Korea. Because of the status as statelessness of “Joseon” Koreans, they are still discriminated by the Japanese Government. When the normalization of North Korea-Japan relations is realized, pro-North Korean “Joseon” Koreans should be evidently approved as North Korean nationals but the other “Joseon” Koreans who are neither pro-South Korean nor pro-North Korean would get into a new but more complicated trouble as statelessness among tree countries. This is one of the unsolved problem in cleaning up past incidents between Korea and Japan as a post World War II settlement.

녹둔도의 노령화 과정과 그 현재적 음미

노영돈(Loh, Yeong-Don) 백산학회 2005 白山學報 Vol.- No.73

Nok-doon Do(Islet) which was located at the mouth of the Tumen River and indigenous territory to Korea from time immemorial. Nok-doon Do was connected by the alluvium to the northern side of the Tumen River, the Maritime Province at around the middle of 19th century but before 1860 when the Treaty of Peking was concluded between China and Russia. According to the Treaty of Peking, the two states would set up 20 boundary markers from the Ussuri River to the Tumen River and Russia could occupy upto 20 Li(里) from the mouth of the Tumen River as a territory. And its additional treaty, the Additional Article to the Treaty of Peking of 1861 reduced the boundary markers to 8 and Russia set up the last boundary marker of the “T(土)” at the spot of 46 Lis’ distance from the mouth of the Tumen River in August, 1861. In the process of setting up the boundary marker of “T” by Russia, Nok-doon Do was comprised in the territory of Russia. It was a part of the Russia’s expansionism. Korea made protests against Russia’s illegal measure from 1885. But since Korea forcibly became a protectorate of Japan in 1905, the protest to Russia could not be continued. Until now the situation that Russia illegally occupied Korea’s Nok-doon Do maintains. So including Nok-doon Do issue, Korea’s northern territory problems caused in the era of imperialism but since they were not dealt with legally proper measures, the present border lines between Korea and Russia and China do not have the finality. But this insistence does not mean to break the peaceful relationship between the authorities concerned. The point is that the historical fact that Nok-doon Do illegally belonged to Russia should be considered by Korea’s diplomatic policy towards Russia.

태극기의 국기로서의 최초 사용과 인천

노영돈(Loh, Yeong Don) 인천대학교 인천학연구원 2017 인천학연구 Vol.26 No.-

북한과 러시아의 국경체제에 관한 연구

노영돈(Loh, Yeong-Don),이현미(Lee, Hyun-Mi) 백산학회 2010 白山學報 Vol.- No.87

It is known that Democratic People’s Republic of Korea and Soviet Union (Russian Federation) have concluded six agreements from 1985 to 2004. In accordance with those agreements, the boundary of two countries is divided into two parts, one is river boundary on the Tumen river, the other is boundaries of territorial water, exclusive economic zone and continental shelf on the East Sea. The starting point of the two countries’ boundary is the intersection of the three boundaries of DPRK, Russia and China on the Tumen river. According to ‘Agreement among the People’s Republic of China, the Democratic People’s Republic of Korea and the Russian Federation on the decision for boundary lines of territorial waters on the Tumen river’ concluded with China, DPRK and Russia in 1998, the boundary point of territorial waters of the three countries on the Tumen river is the intersection in which the extended line of boundary point of China and Russia and the middle line of main waterway of the Tumen river across each other on the Tumen river. There are, however, no exact coordinates of the boundary point of three countries that is a starting point of DPRK and Russian border lines neither in the agreement nor ‘Treaty between the Union of Soviet Socialist Republic and the Democratic People’s Republic of Korea on the Demarcation of the Soviet-Korean National Border’ which is the first agreement relating to borders in 1985, so it couldn’t be able to grasp definite substance for border lines on the Tumen river. After that, the exact coordinates of the boundary point of three countries on the Tumen river has been released in ‘Supplementary Description Protocol to the Eastern End of National Border Line between the People’s Republic of China and the Russian Federation’ concluded in 2002. Direction of border line between DPRK and Russia which is progressing along the main waterway of Tumen river from the boundary point of three countries on the Tumen river has been noted in Description of the Treaty on the Demarcation of the Soviet-Korean National Border in 1985. This border line goes along the main waterway of Tumen river and arrives at middle order line goline connecting ts asorts-one is the most southern end of Russian coastline and other is the most northern end of DPRK’s East Sea coastline. The middle order is the end of border line between DPRK and Russia on the Tumen river. The st rect coordinates of this middle ordnt had not been referred to in Description in 1985, but it has been released in ‘Agreement between the Government of the Union of Soviet Socialist Republic and the Government of the Democratic People’s Republic of Korea Concerning the Regime of the Soviet-Korean State Frontier’. The end point of the border line on the Tumen river, at the same time, is the starting point of territorial water line on the East Sea between the two countries. That is, according to ‘Agreement between the Government of the Union of Soviet Socialist Republic and the Government of the Democratic People’s Republic of Korea on the boundary of Economic Zone and Continental Shelf’ concluded in 1986, the starting point of territorial water is located in the mouth of Tumen river where the border line on Tumen river between the two countries is ended. From this point, territorial water line is demarcated on the East Sea based on 12 nautical mile of territorial water regime, and the straight line extended from the end point of territorial water line is constituting border line of economic zone and continental shelf between two countries on the East Sea. In brief, the border line of territorial water, economic zone and continental shelf between DPRK and Russia is a single line on the East Sea, and it could be the first case in East Asia.

북극해항로 관련 러시아 국내법제의 고찰

노영돈(Loh, Yeong-Don),박원(Park, Won) 성균관대학교 법학연구소 2011 성균관법학 Vol.23 No.3

This paper intends to analyze the Russian legislation and their problems related to the Northern Sea Route(hereafter ‘NSR’) through reviewing Russia’s 5 current laws regarding the NSR. The Arctic Ocean is the one of the world’s five ocean surrounded by the sea area within Arctic Circle and the north coasts of Eurasia and America continents. Currently the Northwest Passage and Northeast Passage are two important seasonal waterways in the Arctic Ocean, and the Future Central Arctic Shipping Route is also expected as shipping route in nearly future depends on significant reduction of ice thickness in Central Arctic Ocean. The NSR is the middle part of the Northeast Passage, acrossing the north coast of Russian’s Eurasian Continent. There are 2 current fereral laws and 3 enforcement regulations regulating the related issues regarding NSR. Through Federal Laws “on the Internal Sea Waters, Territorial Sea and Adjacent Zone of the Russian Federation” and “Exclusive Economic Zone of Russian Federation”, Russia emphasize their jurisdictions of the Northern Sea Route. “Regulations for Navigation on the seaways of the Northern Sea Route” is the main legislation among the laws related to the NSR regulating all issues in the NSR areas. In “Regulations for Icebraker and Pilot Guiding of Vessels through the Northern Sea Route” and “Requirements for Тhe Design, Equipment and Supplies of Vessels Navigating the Northern Sea Route”, special requirements for icebrakers and ships sailing in the the NSR are mentioned in detail. Russia insists These 5 laws and regulations are legislated complying with the international law, especially with the Article 234 of the United Nations Convention on the Law of the Sea(hereafter ‘UNCLOS’). But the interpretation of the article in Russian law on the boundary of the NSR, excessively high rate of the charge and legal status of some straits via the NSR are still the matter in dispute. Legal issues on the NSR such as the legal status of the NSR, the legal collision of national legislation in Russia with UNCLOS are highly expected to be borne of contention. In this respect, it is important for us to examine thoroughly current Russian federal laws and regulations to promote and make opportunity of the NSR as the alternative seaways from Far East to Europe efficiently.

사할린한인 우편저금청구소송과 그 후의 동향

노영돈(Loh, Yeong Don) 성균관대학교 법학연구소 2017 성균관법학 Vol.29 No.2

사할린한인문제는 크게 귀환문제, 국적문제, 개인재산권문제의 3가지로 구분할수 있다. 사할린한인문제가 제기된 초기에는 일본에서 귀환문제가 중심이 되어 소송이 제기되었으나, 1990년대 들어 생존자인 사할린한인 1세에 한하여 귀환문 제가 어느 정도 해결되었으며, 이로써 사할린한인의 우편저금 등 미지급임금과 관련한 개인재산권문제로 2007년 일본 도쿄 지방재판소에 <사할린한인 우편저금 청구소송>이 제기되었다. 한편 그 동안 사할린한인의 국적문제가 간간히 제기된 바가 있었는데, 우편저금 청구소송 과정에서 2009년 일본 측이 한국으로 영주 귀국한 사할린한인은 이로써 한국국적을 취득하였으므로 1965년 한일 청구권협정이 소급 적용되어 그청구권이 소멸되었다고 주장함으로써 사할린한인의 개인재산권문제는 귀환문제및 국적문제와 연계되게 되었다. 한일 청구권협정 체결 이후부터 이 당시까지는 한일 양국정부가 공히 사할린 한인은 청구권협정의 대상이 아니라는 입장이 일치되어 있었다. 그런데 이 소송 The issues about Sakhalin Koreans fall into tree; repatriation, nationality and private property. In the early years when the matter of Sakhalin Koreans had came up to public attention, the issue about their repatriation was filed a lawsuit in Japan. But, from the 1990’s, the survived the first generation of Sakhalin Korean of the time started out to be repatriated to South Korea, the matter moved over to the issue of private property. A case of reimbursement claim for the postal savings of unpaid by Japan was brought to a Japanese court in 2007. Whereas the issue about their nationality was occasionally brought up until this case. The Japanese government, the dependant, argued in this case, in 2009, that Sakhalin Koreans who had repatriated to South Korea and, therefore, acquisited Korean nationality, should lose their right of claim, because the 1965 Agreement between Korea and Japan was retroactively applied. By this time, both Korean and Japanese Government had commonly approved that the matter of Sakhalin Koreans were laid beyond the scope of application of the Agreement. The Japanese Government abruptly reversed its attitude and the Korean government, maintained conventional attitude, not taken any diplomatic action against Japan. Meanwhile, the Constitutional Court of Korea upheld, in the cases concerning comfort women and explosion-affected people, in 2011, that theomission that Korean Ministry of Foreign Affairs had not protested according to the article 3 of the Agreement is unconstitutional. The article 3 provides that any dispute concerning the interpretation or the implement of this Agreement shall be settled primarily through diplomatic channels and any dispute which cannot be settled through diplomatic channel shall be submitted for decision to an arbitral commission of three arbitrator. As the Constitutional Court of Korea upheld the omission unconstitutional, the plaintiffs of the case of reimbursement claim for the postal savings withdrew it. They considered that these decisions of the Constitutional Court should be the same to the case of Sakhalin Koreans and then, if the Korean Ministry of Foreign Affairs would proceed to the diplomatic channel to settle this dispute, the case in Japan would be meaningless. Afterwards Korean government requested Japanese government to hold the diplomatic channel, but Japanese government refused by non-response policy. In this circumstance, a claim for compensation was filed to the Seoul Central District Court for the reason why Korean Ministry of Foreign Affairs have violated the obligation to proceed the next step to submit the dispute to the arbitral commission. The Court ruled that although Korean government’s measure was not sufficient, it is not approved that the Ministry has the legal obligation to proceed to submit to the arbitral commission for the present. There is no progress to this dispute until now.

재외동포정책 전담기구 신설에 관하여

노영돈(Loh, Yeong Don) 성균관대학교 법학연구소 2018 성균관법학 Vol.30 No.2

1990년대 이래 재외동포의 수가 급증하고, 동시에 재외동포의 본국으로의 출입국과 활동이 심화됨에 따른 재외동포정책의 커다란 국면변화가 발생함으로써 재외동포정책의 수립과 집행에 있어서 전문성, 창의성, 독립성, 효율성 등이 요구된다. 이에 따라 「재외동포재단법」이나 「재외동포법」이 마련되기는 하였으나 이로써는 재외동포정책이 국면변화에 상응하는 현실적 요구에 미흡하여 오늘날 재외 동포정책 전담기구를 설치·운영하여야 한다는 논의가 지속되고 있다. 이러한 재외동포정책 전담기구의 위상과 관련하여 ‘(가칭)재외동포처’, ‘(가칭)재외동포청’, 또는 ‘(가칭)재외동포위원회’를 신설하자는 주장들이 제기되어 왔다. 이 논문은 이들 중에서 어느 형태의 것이 바람직한지에 대하여 정부조직체계와 관련 하여 검토하였다. 「정부조직법」에 의하면, 중앙행정기관은 ‘부’, ‘처’, ‘청’으로 하거나 다른 법률에 의한 행정위원회 등 합의제 행정기관을 설치할 수 있도록 하고 있다. 합의제 기관에 대하여는 「행정위원회법」이 적용된다. ‘부’, ‘처’, ‘청’은 전형적인 정부조직의 형태들로 ‘부’는 대통령 소속으로 장관을장으로 하고 있고, ‘처’는 국무총리 소속으로 ‘처장’을 장으로 하며, ‘청’은 장관 소속으로 청장을 장으로 하고 있다. 또 ‘부’의 장인 장관은 국무위원으로 보하며, 이들은 국무회의에 참석하고 의장인 대통령에게 의안을 제출하고 국무회의의 소집을 요구할 수 있다. 그러나 현실적으로 재외동포정책 전담기구로 ‘부’를 주장한 적은 없었다. 한편 ‘처’의 장인 처장은 필요한 경우 국무회의에 출석하여 발언할 수 있으며, 소관사무에 관하여 국무총리에게 의안의 제출을 건의할 수 있다. 또 ‘부’·‘처’의 장은 그 소관사무의 효율적 추진을 위하여 필요한 경우에는 국무총리에게 소관사무와 관련되는 다른 행정기관의 사무에 대한 조정을 요청할 수 있다. 반면 ‘청’의 장인 청장은 국무회의 출석권과 발언권이 없으며, 국무총리에 대한 의안제출건의권과 행정기관간의 사무조정요청권도 없다. 게다가 장관은 물론 차관 또는 차장은 소속청의 중요정책수립에 관하여 그 청의 장을 직접 지휘할 수 있다. 요컨대 오늘날 요구되는 재외동포정책 전담기구로서 ‘청’은 가장 부적합한 것이다. 한편 ‘위원회’는 전형적인 행정기관이 경직성이 강한 공무원조직이 아니라 그 필요성이나 목적에 따라 특별법에 의하여 그 조직과 운영을 융통성있게 정할 수 있다. 또 「행정위원회법」에 의하면 ‘위원회’, 즉 대통령, 국무총리, ‘부’, ‘처’, ‘청’에 ‘위원회’를 둘 수 있다. 재외동포정책 전담기구인 ‘위원회’는 대통령 소속 또는 국무총리 소속으로 논의되어 왔다. 또「행정위원회법」에 의하면 ‘위원회’에는 사무기구를 둘 수 있다. 또 이러한 ‘위원회’는 특별법에 의하여 설치·운영되어야하므로 해당 법률에서 그 목적과 필요에 따라 적절하게 위원회를 구성하고 행정 기관을 조직할 수 있다. 결론적으로 재외동포정책 전담기구는 대통령 소속 또는 국무총리 소속의 ‘위원회’로 할 것인가 아니면 국무총리 소속의 ‘처’로 할 것인가로 압축되는데, 어느것으로 할 것인가는 재외동포정책을 국가정책의 하나로서 어느 정도로 중요하게 인식하느냐 하는 정책적 또는 전략적 판단에 달린 것이다. Since the 1990’s, the number of overseas Koreans has increased rapidly and the scale and scope of their entry into and departure from Korea and their activities of overseas Koreans in and with Korea have expended widely. These critical changes of overseas Koreans’ situation are requiring the specialty, creativity, independence and effectiveness for the formulation and implementation of policies on overseas Koreans. Even though, accordingly, the Overseas Koreans Foundation Act of 1997 and the Act on the Immigration and Legal Status of Overseas Koreans of 1999 were prepared, they couldn t really come up to the sustaining requirement. It is persistingly alleged that an exclusive organization dealing with the formulation and implementation of policies on overseas Koreans should be established. Various opinions relating to the status of the organization have suggested; the ‘Cheo(a ‘Ministry’, but the ‘Bu’, which is a higher level in the Korean government organization system than the ‘Cheo’, is also named a Ministry in English)’, the ‘Cheong(an administrative agency which is a lower level in the Korean government organization system than the ‘Cheo’)’ and a representative administrative agency, such as an administrative committee. This study analyses which one is the desirable status in the Korean government organization system, based on the Government Organization Act of Korea. According to the Government Organization Act, a central administrative agency shall be a ‘Bu’, ‘Cheo’ or ‘Cheong’ and where needs arise to perform part of duties independently, an administrative agency may establish a representative administrative agency, such as administrative committee, etc. which is regulated by the Administrative Committee Act. The ‘Bu’, the ‘Cheo’ or the ‘Cheong’ are the typical government organizations; the ‘Bu’ is under the control of the President and its head is a ‘Janggwan(a Minister)’, the ‘Cheo’ is under the jurisdiction of the Prime Minister and its head is a ‘Cheojang(also a Minister in English)’, and the ‘Cheong’ is under the ‘Janggwan’ and its head is the ‘Cheongjang(a Commissioner)’. The ‘Janggwan’, the head of the ‘Bu’ shall be appointed as member of the State Council, may submit items for deliberation and discussion to the Chairperson and request the Chairperson to call a meeting of the State Council. But the ‘Bu’ has never been suggested as the exclusive organization of policies on overseas Koreans. The ‘Cheojang’, the head of the ‘Cheo’ may attend the State Council and express their opinions if necessary and may propose that the Prime Minister submit items for deliberation and discussion related to their duties to the State Council. The head of a ‘Bu’ or a ‘Cheo’ may request the Prime Minister to coordinate the duties of other administrative agencies related to his/her duties if necessary for the efficient fulfillment of his/her duties. Whereas the ‘Cheongjang’, the head of a ‘Cheong’ may not attend the State Council and express their opinions, not propose that the Prime Minister submit items for deliberation and discussion and not may request the Prime Minister to coordinate the duties of other administrative agencies. Futhermore, the ‘Janggwan’ and the ‘chagwan’, the vice Minister may directly direct the ‘Cheongjang’ associated with his/her agency in formulating important policies. And the ‘Cheongjang’ is obliged to receive prior approval, to previously report or to report about certain items as prescribed by Ministerial Decree concerned. In short, the ‘Cheong’ is not a proper idea for the exclusive organization of policies on overseas Koreans, because the ‘Cheongjang’ has no authority to coordinate the duties of the ‘Bu’ or the ‘Cheo’ which are located at the higher level in the Korean government organization system. And an administrative committee may be established, if necessary, under the control of the President, the Pr