외교공관의 공관지역 점유에 대한 주권면제 및 그로 인한 소유권 침해에 대한 구제: 대법원 2023. 4. 27. 선고 2019다247903 판결 = Sovereign Immunity regarding the Occupation of Premises by Diplomatic Missions and Recourse for such Infringement on Land Property: S. Ct., April 27, 2023, 2019Da247903

외교공관의 토지 점유로 인한 소유권 침해와 구제 방안을 검토한다.

In this case where the diplomatic mission of the Mongolian Embassy in Korea infringed upon adjacent land property, the Supreme Court dismissed the claim for removal of the invading building and delivery of the corresponding plot of land due to lack of standing. A similar precedent concerning the premises of the mission of the Dutch Embassy denied the locus standi of the plaintiff per analogy of Article 31 paragraph 1(a) of the Vienna Convention on Diplomatic Relations. Au contraire, the Supreme Court applied the doctrine of sovereign immunity in this case, thereby clarifying the distinction between the two different sets of immunity.

Of note is that the Supreme Court, while granting immunity from jurisdiction regarding real rights, admitted the claim for recovery of unjust enrichment inured from the unlawful occupation and usage of land. The orthodox doctrine of restrictive sovereign immunity recognizes exceptions to immunity, among which is included proceedings related to the determination of any right, interest, or obligation of a foreign State regarding its possession or use of immovable property within the State of the forum.

Disputes regarding land property are seen as a paragon of acta jure gestionis, and as such, the matter in issue cannot be properly explained from the customary perspective of restrictive sovereign immunity. Back in 1998 when the Supreme Court adopted restrictive sovereign immunity, it was ruled that if a certain actum jure gestionis is closely connected to acta jure imperii so that the exercise of jurisdiction upon which may constitute unwarranted interference, then immunity from jurisdiction may also be granted for that act.

In the present case, the court gave substance to this exceptional circumstance by providing the standard of “whether the trial may disturb the performance and function of the diplomatic mission,” adjudicating that the pecuniary claim seeking recovery of unjust enrichment does not cause such disturbance. This particular standard is not found in previous jurisprudence, but was first declared in this case. Only by interpreting the Supreme Court’s jurisprudence as having modified the doctrince of restrictive sovereign immunity by permitting the possibility of immunity for acta jure gestionis, can we clearly comprehend this ruling.

By virtue of that very possibility was achievable the extension of sovereign immunity into what was traditionally considered as located outside its scope and reach. The true significance of this case lies within its sui generis acknowledgment of sovereign immunity. Nonetheless, the deference shown to international law by the Supreme Court inescapably reduces the range of recourse the property owner may seek. The bestowal of immunity was selective, in that claims based on real rights were dismissed contrary to the monetary claim. Taking into account not only the factual circumstances but also the complementarity of legal natures, such selective admission lacks justification.

Even more limiting is the immunity from judgment enforcement. It is time to seek out more effective remedies, such as judicial mutual assistance that realizes waivers for various immunities in international law.