국제법상 미승인국가의 법률적용에 관한 고찰 -북한 저작물의 법적 보호를 중심으로- (Compliance with the law to Unrecognized State under International Law: with special reference to Protection of Copyrights of North Korean Literary Works)

서지정보

· 발행기관 : 한국지식재산학회
· 수록지 정보 : 산업재산권 / 39호 / 285 ~ 322페이지
· 저자명 : 오미영

초록

Article 3 of the South Korean Constitution refers “the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands”. In accordance with this Article the South Korean Judiciary has regarded the territory of the North Korea as a part of South Korean territory and concluded that South Korean copyrights laws may be applied to North Korean literary works. In other words, South Korean Constitution does not allow any other kinds of sovereignty in the Korean peninsula except the sovereignty of the South Korea. Furthermore, the South and the North Koreas do not recognize as a “State” with each other. Therefore, any kinds of legally binding documents including treaty or agreement have not been concluded between South and North. Therefore, as mentioned above, the South Korean judiciary holds the attitude which South Korean civil laws and copyrights laws may be applied even at the North Korean territory.
Nevertheless, it can’t be denied that there are substantial or factual difficulties or limitations for a South Korean authority to enforce its protective measures under the South Korean laws at the territory of North Korea. Regarding these factual difficulties or limitations, the attitude of the South Korean judiciary as referred above seems to be paradoxical. At the same time, there is no any legal or substantial guarantee for the copyrights of South Korean literary works at the territory of the North Korea.
Concerning this issue, the Japanese judiciary rendered its judgments which it is not necessary to protect the copyrights of literary works of the unrecognized State: the North Korea, although the both (Japan and the North Korea) are the State parties of the Bern Convention. Because recognition should not be inferred from the fact that both states are parties to a multilateral agreement. This attitude of the Japanese judiciary seems to be important for the South Korean judiciary to deal with “the copyrights of North Korean literary works”. Because the South Korean and Japan the both do not recognize the North Korea as “a State” under international law.
Regarding such an attitude of Japanese judiciary, it would be desirable for the South Korean judiciary to deal with this issue which restarts a negotiation with the North Korea to prepare an effective and substantial measure to protect the copyrights of the both, based upon Inter-Korean Basic Agreement (not a treaty under international law) and its annexed understandings, rather follows a rigid approach to this issues as referred above. Additionally the special relations between South and North Koreas: not a formal relation between States rather but a sui generis should be regarded in such future negotiation not to breach the Constitutional Law of the Republic of Korea.

영어초록

Article 3 of the South Korean Constitution refers “the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands”. In accordance with this Article the South Korean Judiciary has regarded the territory of the North Korea as a part of South Korean territory and concluded that South Korean copyrights laws may be applied to North Korean literary works. In other words, South Korean Constitution does not allow any other kinds of sovereignty in the Korean peninsula except the sovereignty of the South Korea. Furthermore, the South and the North Koreas do not recognize as a “State” with each other. Therefore, any kinds of legally binding documents including treaty or agreement have not been concluded between South and North. Therefore, as mentioned above, the South Korean judiciary holds the attitude which South Korean civil laws and copyrights laws may be applied even at the North Korean territory.
Nevertheless, it can’t be denied that there are substantial or factual difficulties or limitations for a South Korean authority to enforce its protective measures under the South Korean laws at the territory of North Korea. Regarding these factual difficulties or limitations, the attitude of the South Korean judiciary as referred above seems to be paradoxical. At the same time, there is no any legal or substantial guarantee for the copyrights of South Korean literary works at the territory of the North Korea.
Concerning this issue, the Japanese judiciary rendered its judgments which it is not necessary to protect the copyrights of literary works of the unrecognized State: the North Korea, although the both (Japan and the North Korea) are the State parties of the Bern Convention. Because recognition should not be inferred from the fact that both states are parties to a multilateral agreement. This attitude of the Japanese judiciary seems to be important for the South Korean judiciary to deal with “the copyrights of North Korean literary works”. Because the South Korean and Japan the both do not recognize the North Korea as “a State” under international law.
Regarding such an attitude of Japanese judiciary, it would be desirable for the South Korean judiciary to deal with this issue which restarts a negotiation with the North Korea to prepare an effective and substantial measure to protect the copyrights of the both, based upon Inter-Korean Basic Agreement (not a treaty under international law) and its annexed understandings, rather follows a rigid approach to this issues as referred above. Additionally the special relations between South and North Koreas: not a formal relation between States rather but a sui generis should be regarded in such future negotiation not to breach the Constitutional Law of the Republic of Korea.

참고자료

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