• Korean Journal of Heritage: History & Science
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• v.37
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• pp.371-405
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• 2004

International circulation of cultural assets involves numerous countries thereby making an approach based on international law essential to resolving this problem. Since the end of the $2^{nd}$ World War, as the value of cultural assets evolved from material value to moral and ethical values, with emphasis on establishing national identities, newly independent nations and former colonial states took issue with ownership of cultural assets which led to the need for international cooperation and statutory provisions for the return of cultural assets. UNESCO's 1954 "Convention for the Protection of Cultural Property in the Event of Armed Conflict" as preparatory measures for the protection of cultural assets, the 1970 "Convention on the Means of Prohibiting and Preventing the Illicit Import and Transfer of Ownership of Cultural Property" to regulate transfer of cultural assets, and the 1995 "Unidroit Convention on Stolen or Illegally Exported Cultural Objects" which required the return of illegally acquired cultural property are examples of international agreements established on illegal transfers of cultural assets. In addition, the UN agency UNESCO established the Division of Cultural Heritage to oversee cultural assets related matters, and the UN since its 1973 resolution 3187, has continued to demonstrate interest in protection of cultural assets. The resolution 3187 affirms the return of cultural assets to the country of origin, advises on preventing illegal transfers of works of art and cultural assets, advises cataloguing cultural assets within the respective countries and, conclusively, recommends becoming a member of UNESCO, composing a forum for international cooperation. Differences in defining cultural assets pose a limitation on international agreements. While the 1954 Convention states that cultural assets are not limited to movable property and includes immovable property, the 1970 Convention's objective of 'Prohibiting and preventing the illicit import, export and transfer of ownership of cultural property' effectively limits the subject to tangible movable cultural property. The 1995 Convention also has tangible movable cultural property as its subject. On this point, the two conventions demonstrate distinction from the 1954 Convention and the 1972 Convention that focuses on immovable cultural property and natural property. The disparity in defining cultural property is due to the object and purpose of the convention and does not reflect an inherent divergence. In the case of Korea, beginning with the 1866 French invasion, 36 years of Japanese colonial rule, military rule and period of economic development caused outflow of numerous cultural assets to foreign countries. Of course, it is neither possible nor necessary to have all of these cultural properties returned, but among those that have significant value in establishing cultural and historical identity or those that have been taken symbolically as a demonstration of occupational rule can cause issues in their return. In these cases, the 1954 Convention and the ratification of the first legislation must be actively considered. In the return of cultural property, if the illicit acquisition is the core issue, it is a simple matter of following the international accords, while if it rises to the level of diplomatic discussions, it will become a political issue. In that case, the country requesting the return must convince the counterpart country. Realizing a response to the earnest need for preventing illicit trading of cultural assets will require extensive national and civic societal efforts in the East Asian area to overcome its current deficiencies. The most effective way to prevent illicit trading of cultural property is rapid circulation of information between Interpol member countries, which will require development of an internet based communication system as well as more effective deployment of legislation to prevent trading of illicitly acquired cultural property, subscription to international conventions and cataloguing collections.

• Korean Association of Arts Management
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• no.51
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• pp.191-219
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• 2019

Adoption of applicable law for the international trade of artworks is closely related to the results of lawsuits. Recently, starting with New York, the hub of the international artworks market, a modern, mixed-law is gradually being adopted more. It is difficult to designate an applicable law of an international trade of artworks through private laws regulations of relevant countries, and the public laws regulations must also be considered in relation to individual benefits and the public benefits to the relevant countries. With regards to the foreign relations issues, Korea's private international law embraces a so-called public order theory, and according to the Section 7 of the Act on the Private International Law and its enactment history, the compulsory provision, which seems appropriate for application to the corresponding matter, applies without regards to the selection of the applicable law. The Civil Act of Korea acknowledges bona fide acquisition of a cultural asset, in principle, if the Cultural Heritage Protection Act is not applicable. Moreover, a lost artwork is also a subject of bona fide acquisition; however, if the relevant artwork is either stolen or lost, the original owner has the right to demand the return of that artwork within 2 years of being stolen or lost according to the Section 250 of the Civil Act. Also, if the buyer purchased from a distributor specializing in the artworks, such as auction, open market or gallery, the buyer could request a compensation of the purchase price from the original owner, and if the buyer purchased through a private transaction, the buyer cannot demand a compensation of the purchase price and must return the artwork.

• Korean Journal of Heritage: History & Science
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• v.53 no.4
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• pp.274-291
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• 2020

This year is the 50th anniversary of the adoption by UNESCO in 1970 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (the '1970 Convention'). Since its ratification of the 1970 Convention in 1983, the Republic of Korea has domestically implemented the Convention through its Cultural Heritage Protection Act, which was first enacted in 1962. This is a different form of implementation than is normally used for other UNESCO Conventions on cultural heritage, in that the Republic of Korea has recently adopted special acts to enforce the 2003 Convention for the Safeguarding of Intangible Cultural Heritage and the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage. In addition, the 1970 Convention has been developed further through the introduction of new Operational Guidelines in 2015 for the concrete enforcement of the Convention, which has provided momentum for the Republic of Korea to analyze its current national legislation related to the 1970 Convention as well as consider its amendment in the future. Overall, the Cultural Heritage Protection Act of the Republic of Korea effectively reflects the duties of States Parties under the 1970 Convention. These include measures to introduce export certificates, prohibit the import of stolen cultural property, return other state parties' cultural property, and impose penalties or administrative sanctions in the event of any infringements. Indeed, the Republic of Korea's implementation of the 1970 Convention was introduced as an example of good practice at the Meeting of State Parties in 2019. However, changes in the illegal market for cultural property and development of relevant international law and measures imply that there still exists room for improvement concerning the legal implementation of the 1970 Convention at the national level. In particular, the Operational Guidelines recommend States Parties to adopt legal measures in two respects: detailed criteria for due diligence in assessing bona-fide purchasers, referring to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and measures to address the emerging issue of illegal trade in cultural property on internet platforms. Amendment of the Cultural Heritage Protection Act and other relevant laws should be considered in order to duly reflect these issues. Taking that opportunity, concrete provisions to facilitate international cooperation in respect of the implementation of the 1970 Convention could be introduced as well. Such measures could be expected to strengthen the Republic of Korea's international legal cooperation to respond to the changing environment regarding illicit trafficking of cultural property and its restitution.