Judicial Divergence: Comparing Korean and Japanese Supreme Court Jurisprudence

This section examines the "judicial dialogue" between the highest courts of Japan and South Korea. It highlights how differing constitutional mandates and interpretations of international law have led to legal deadlock.

The Validity of Foreign Judgments (Res Judicata)

Should a court in one country be bound by a final ruling issued in another country’s court regarding the same parties and facts?

Primary Source:

• Nishimatsu Construction Co. v. Song Jixiao et al. (2007). The Japanese Supreme Court established that post-war settlement treaties (like the 1965 Agreement) did not extinguish the substantive rights of individuals, but did strip them of their "power to litigate.” Under this doctrine, any remaining individual claims are considered "natural obligations" that can be paid voluntarily by companies but cannot be compelled by a court.

Secondary Resource: 

Yeo Un-taek et al. v. Nippon Steel (2018). Summary: The South Korean Supreme Court ruled that Japanese companies are liable for forced labor during World War II, marking a significant shift in corporate liability and post-colonial jurisprudence. The decision, along with follow-up rulings in 2025, confirmed that Nippon Steel must compensate Korean victims, rejecting arguments that such claims were settled by the 1965 treaty.
 

The Statute of Limitations and "Illegal Occupation"

• Primary Sources:
  Yeo Un-taek et al. v. Nippon Steel & Sumitomo Metal Corp. (2007). The Supreme Court of South Korea held that the 3-year "legal clock" (Statute of Limitations) did not begin in 1945 or 1965. Instead, it only began in May 2012, when the Supreme Court first ruled that forced labor victims had a right to sue. Before that date, the victims faced an "objective obstacle" because the lower courts consistently followed the government's view that their rights were waived.

• Case on the Unconstitutionality of the Omission of Action to Settle the Dispute over the Right to Claim Damages against Japan. (2011). The Constitutional Court of Korea ruled that the 1910 Annexation was void ab initio (never legal). Therefore, the "comfort women" and "forced labor" issues were not just war damage, but crimes against humanity arising from an illegal occupation. The Court declared it was unconstitutional for the Korean government to not actively challenge Japan's refusal to discuss these specific individual claims. This is the ruling that fundamentally changed South Korea's official stance on the 1965 Treaty, moving it from a diplomatic issue to a constitutional human rights issue.

Secondary Resources: 

• Jinyang Koh, "Comfort Women: Human Rights of Women from Then to Present" (LL.M. thesis, University of Georgia School of Law, 2007), Digital Commons @ University of Georgia School of Law. The author traces the shift from the 1965 "state-interest" model to the 2011 "individual-rights" model and explains the "Constitutional Omission" theory—the idea that the Korean government has a positive duty to protect its citizens. 
• Seokwoo Lee and Sungjoon Cho Lee, “Yeo Woon Taek v. New Nippon Steel Corporation: Case Note,” American Journal of International Law 113, no. 3 (2019). In this article, the authors break down the Statute of Limitations issue, explaining that the Court applied the principle of "Good Faith." They argue it would be an "abuse of rights" for a company like Nippon Steel to rely on a technical time limit when they were the ones who participated in the original unlawful acts.
• Timothy Webster, “South Korea Shatters the Paradigm: Corporate Liability, Historical Accountability, and the Second World War,” Asian Journal of International Law 10, no. 1 (2020). Webster argues that the 2018 decisions of the Supreme Court of Korea mark a significant shift in South Korea’s legal interpretation of the legacy of Japanese colonialism by recognizing corporate liability of Japanese firms for wartime forced labor. 

Glossary of Terms