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자료유형
학술저널
저자정보
저널정보
서울국제법연구원 서울국제법연구 서울국제법연구 제17권 제2호
발행연도
2010.12
수록면
155 - 178 (24page)

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초록· 키워드

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As is well known, the Treaties related to the Annexation of Korea has been argued as null and void ab initio on the basis that these treaties were concluded under coercion of the representative of Korea or they have grave defects in the forms and procedure of their conclusions. In addition to these reasons, recently another question was raised concerning the validity of these treaties. It came to be known that Japan provided considerable sums of money to the Korean Emperor, Royal family members, ministers and other persons who were related to the conclusion of these treaties. To international law scholars, a historian raised a question whether this provision of money by Japan can influence the validity of the treaties. In 1969 Vienna Convention on the Law of Treaties, there is an article which can be applied to the Japanese government`s acts of affording money to Koreans in relation with the conclusion of the treaties: article 50 regulating Corruption of a representative of a State. However, this Convention was concluded on 1969 and the Japanese government`s acts were done around on 1905. Therefore, according to the principle of inter-temporal law, article 50 of the 1969 Vienna Convention per se can not applied to the Japanese acts. The discussions surrounding this article during the meetings of the International Law Commission and United Nations Conference on the Law of Treaties show that it was not an article codifying pre-existing customary international law. At the same time, there were many arguments that corruption is subsumed by the article concerning fraud (Article 49) as an reason for invalidation of a treaty. To know the positive international legal rule of the time concerning the corruption or fraud as an element impeding the freedom of consent, most influential texts of international law published at 19th century were reviewed. Almost all of these texts enumerated fraud as an element invalidating treaty whereas no reference on the corruption can be found. In addition, corruption was suggested as a form of fraud in no works. In the light of this facts, it seems to be difficult to say that the Japanese offering of money invalidated the Treaties related to the Annexation of Korea.

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