• Alexander Han

“Disobeying legal sentiment of people” v.s. “courageous ruling”



“Disobeying legal sentiment of people” v.s. “courageous ruling” - a Korean court’s ruling on requisition causes controversy


The decision by the Seoul Central District Court's Civil Division 34 (Chief Department Judge, Kim Yang-ho) to dismiss a lawsuit for damages filed by former requisitioned workers is expected to continue to cause controversy for the time being because of the large discrepancy between domestic legal sentiment and international legal reality. In addition to the criticism of “the ruling of putting national interest before individual,” even national petitions appeared to the President’s Office that urges the impeachment of the chief judge. On the other hand, it is nonsense to judge the case corresponding to the international dispute only by domestic legal order and values, so in that sense it is also recognized as a courageous decision at the same time.


On June 8, Lim Jae sung, an attorney for former requisitioned workers of Nippon Steel & Sumitomo Metal (currently Nippon Steel) criticized the previous day's decision which was in direct opposition to the final decision of the Korean Supreme Court in favor of workers, by saying, “There are many unreasonable grounds.” The criticism was that the case was decided by assumption and imagination not by logic and evidence. The previous day, the court dismissed the lawsuit, and revealed that it also considered international adverse effects such as the damage of the trust and prestige of Korean judiciary. Attorney Lim said, “Even the lawyers who criticized the ruling by the Korean Supreme Court in 2018 will not admit the decision as a significant position.”


Over the ruling that “the illegality of colonial occupation and requisition is unfortunately nothing but a domestic interpretation,” many claimed that it is far from people’s legal sentiment. Democratic Party of Korea commented, “The court decision is a vestige of unsettled pro-Japanese sentiment.” There were posts at the Blue House National Petition bulletin board calling for the impeachment of chief judge Kim for his anti-national act.


However, many argue that the more serious the illegality and damage of requisition, the more carefully we should consider the realities of the international community rather than give priority to domestic views. One chief judge commented, “The judicial branch must be careful when judging in the area such as “ethnic sentiment” where rationality becomes paralyzed. In spite of the barbaric act by the Empire of Japan, if former requisitioned workers issues are brought before the international Court of Justice, many are uncertain whether they will get a desirable conclusion. Seeking anonymity, a person in international legal circles explained, “There is no ICJ precedent that has directly addressed the issue of individual right to claim damages associated with anti-humanitarian illegal acts and colonial rule.”


The theory of "state immunity," which is a customary international law prescribing that “a sovereign state shall not stand at the court of another state,” is another reason for the rulings that are far from legal sentiment. The issue of judging the damages of former requisitioned workers by Korean courts is under discussion with “Germany v. Italy case.” The Italian Supreme Court ruled in favor of the Italian plaintiffs who were victims of forced labor during World War II in a case brought against Germany. In a response to this, Germany filed a case with the ICJ, and it ruled in favor of Germany in February 2012.


There is an opinion that the time has come when more careful decision should be made by the judicial branch because the Supreme Court’s full bench decision less than 3 years ago has been challenged by a lower court. In fact, recently, the decisions have been divided within the judicial branch on damages lawsuits by former requisitioned workers and Japanese military comfort women. This year, the courts issued contradicting decisions on former comfort women’s claim of damages.


Korean judges see this as a case where they need to find a consensus by repeating appeals to higher courts and the Supreme Court. At the confirmation hearing in April, Supreme Court Justice Chun Dae-yup said, “Since there are various legal issues including international law, the Supreme Court must put its heart and soul into deciding a case. A chief judge said, "It is not acceptable to have a 'K-Judgment' style when we judge issues that are applied in the international community," adding, "A solid consensus must be formed based on clear logic.”


 

Kukminilbo on 9 June

http://news.kmib.co.kr/article/view.asp?arcid=0924195305

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