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South Korea: Constitutional Court Decides Long-Running Case on Compensation for Forced Labor During Colonial Rule

(Jan. 6, 2016) A lawsuit called “the longest unresolved case” in Korea, which took the country’s Constitutional Court six years to deliberate, was finally settled in December 2015. (2009 Heonba 317 (Dec. 23, 2015) (in Korean); Yong-Jin Che, Claims Agreement Lawsuit That Gained Attention in Korea and Japan, Korean Constitutional Court Avoided Discussion, CHOSUN ILBO (Dec. 24, 2015) (on file with author) (in Japanese).)

Plaintiff Yoon-jae Lee filed a petition with the South Korean Constitutional Court in November 2009, after a district court dismissed her demand to nullify a government decision to pay 11.6 million won (about US$9,800) in compensation to her father, who died in 1987, based on the Act on Support to Victims Mobilized Abroad During the Pacific War. (Act No. 8669 (Dec. 10, 2007), Japan Federation of the Bar Associations website (in Japanese), replaced by the Special Act on Research on Damages from Forced Mobilization and Support to Victims of Forced Mobilization Abroad for the Period of Uprising Against Japan, Act No. 10143 (Mar. 22, 2010).) The Court answered issues involving the constitutionality of the Act, but not the constitutionality of the Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation Between Japan and the Republic of Korea (1965 Japan-South Korea Agreement), as the Court held this was not directly relevant to the case. (Id.; Agreement (June 22, 1965); English translation by the Government of Japan, University of Tokyo website.)

Issues Addressed by the Court

Lee’s father was drafted as a laborer during Japan’s colonial rule of the Korean Peninsula (1910 – 1945). To calculate the amount to be paid to Lee based on the Act, the government used the exchange rate of 2,000 won per 100 yen that prevailed during the time period in question and that reflected the currency values based on the growth rate of the consumer price index during those years. Among other claims, Lee asserted that the calculation was not fair because it did not reflect the current value of the money owed. (Calculation Method of Assistance Grant to Mobilized Victims Was Constitutional, Korean Constitutional Court Said, CHOSUN ILBO (Dec. 23, 2015) (on file with author) (in Japanese).) The Constitutional Court decided, however, that the government’s calculation was not unreasonable. The Court stated that the nature of the support granted by the government is not full compensation of the value of the unpaid wages, but a benefit accorded to the victims. Therefore, although the amount paid may not match the value of the unpaid wages, the calculation of the amount is not unconstitutional. (Id.)

Lee also claimed that the 1965 Japan-South Korea Claims Settlement Agreement is unconstitutional because it restricts individuals from asserting their property rights. The provisions of the 1965 Japan-South Korea Claims Settlement Agreement have been controversial in Korea because they bar claims of Korean people against the Japanese government “completely and finally.” (Court Refuses to Review 1965 Korea-Japan Pact, CHOSUN ILBO (Dec. 24, 2015).) Article 2 of the Agreement states in part:

  1. The Contracting Parties confirm that [the] problem concerning property, rights and interests of the two Contracting Parties and their nationals (including juridical persons) and concerning claims between the Contracting Parties and their nationals, including those provided for in Article IV, paragraph (a) of the Treaty of Peace with Japan signed at the city of San Francisco on September 8, 1951, is settled completely and finally.
  2. … no contention shall be made with respect to the measures on property, rights and interests of either Contracting Party and its nationals which are within the jurisdiction of the other Contracting Party on the date of the signing of the present Agreement, or with respect to any claims of either Contracting Party and its nationals against the other Contracting Party and its nationals arising from the causes which occurred on or before the said date. (Agreement, supra.)

The Court held that article 2 of the 1965 Japan-Korea Claims Agreement does not apply to the case. The Court stated that the issue in this case was the constitutionality of the Act that provided the calculation method of the support grant by the government. Therefore, the Court did not consider the constitutionality of the Agreement itself. (Che, supra.)