일제식민지배청산 관련 헌법재판소판례에 대한 헌법적 분석과 평가

다국어 초록 (Multilingual Abstract)

This paper deals with the constitutional analysis and evaluation on the Constitutional Court’s decisions regarding the liquidation of Japanese colonial regimes.
The State should have investigated not only all the situations of the comfort women victims, soldiers, civilian employees and victims of forced labor drafted by the Japanese Imperial Army during the Japanese colonial regime in Korea, but also should make their best efforts to provide the survivors and their bereaved families with possible diplomatic protection. Then they can restore their honor and human rights, and receive the legal acknowledgement of responsibility and compensation from Japan. Moreover, also the government of the Republic of Korea should have acknowledged its constitutional responsibility for its absence and have given them its own compensation or make up the damages for victims for its failure or omission to protect their lives and human rights, after the government had been rebuilt in Korea in 1948. The government succeeded the continuity of the provisional government of the Republic of Korea, born by the Independence Movement of the Korean people on March 1, 1919. The Korean government, rebuilt in 1948, succeeded in this responsibility and duty to protect the human rights of the people, who had suffered under the Japanese colonial regime. This state’s duty had been guaranteed by the spirit of the Independence Movement on March 1, 1919 and the Constitution of the provisional government of the Republic of Korea. The state should have the responsibility for its absence, which could be deduced from the constitutional continuity of Korea: the state’s duty to protect the human rights or basic rights of the victims, the state’s duty to investigate and excavate all the situations and damages of victims, and the state’s duty to support and restore the damages for victims. Therefore, this kind of state support for victims pursuant to “the special act for the state support for the victims drafted by the Japanese military under the Japanese occupation”, might not be reckoned simply as a graceful benefit for the victims, which depends on the exclusive discretion of the legislation.
In this point, although so called “comfort women” constitutional complaint decision of the Constitutional Court of Korea on August 30, 2011, has a major significance as the first decision, which raised the hands of the comfort women victims in victory and erased the tears from their eyes. However, it is very regretful that the decision had been made without a deeper consideration and awareness with regard to this responsibility for the state’s absence.
Furthermore, also in the cases of the constitutional complaints raised by the former soldiers, civil employees or forced laborer victims drafted by the Japanese military, the legal characters of the state support money could not be reckoned simply as a grateful benefit of the state. It should be treated as compensation for the state’s responsibility for failure to give them the effective protection of their lives and the human dignity or rights. The discretion of the legislation to make this statute should be restricted in this meaning and it should be bound on the clause of equal protection (Art 11 the Constitution) and property rights (Art 23 the Constitution) under the strict scrutiny test.
It infringes on their equal protection rights, that the state gives the state support money only to the victims who had been drafted to the foreign countries, and not to the victims who had been drafted to the Korean peninsula. It is necessary to amend the special act regarding state support for the victims drafted by the Japanese military to the foreign countries under the Japanese occupation.