International Legal Status of Korean Provisional Government and the Identity of Korea as State

关于大韩民国与大韩民国之间的法律关系问题，大韩民国政府认为，这两个政治实体是同一个国家，它们之间存在着法律上的连续性和同一性。根据1986年韩国外交部发表的《大韩民国缔结的多边条约效力确认书》资料，在国际法主体上，大韩民国被认为与大韩民国在法律上是相同的。从帝国到共和国的转变只能解释为国家宪法、政府形式和国家名称的改变。第二次世界大战后韩国的第一部宪法《1948年宪法》也规定，大韩民国成立于1919年，即大韩民国临时政府在中国上海成立的那一年。这种对韩国政府的看法似乎更多地建立在韩国自1919年以来就存在有效政府的前提下。在这种情况下，“政府”当然是指上述的“临时政府”，但从其成立的过程、统治的现实、国际社会的承认以及与其他国家的外交关系的实际情况来看，似乎很难说临时政府是一个有效的政府，是一个国家的组成部分。其必然结果是：朝鲜帝国作为一个国家灭亡了；旧朝鲜帝国的领土变成了日本的领土；同样，朝鲜国民成为日本国民；大韩民国是一个从日本独立出来的新成立的国家。尽管如此，韩国政府对大韩民国与大韩帝国的法律关系问题始终保持着自己的立场。在一些有关多边条约继承的问题上，国际社会也以承认大韩民国与大韩帝国的法律同一性来回应韩国政府的态度。正如我们从最近波罗的海国家独立的事例中所看到的那样，甚至那些被认为已经被其他国家吞并了50多年的国家有时也被国际社会视为“复活的国家”。如果承认大韩民国与大韩帝国的同一性不会对国际社会的法律稳定造成太大的损害，而且可以看作是恢复韩国民族的民族荣誉和纠正外国殖民统治带来的不公正后果的一种方式，那么可以认为韩国也应该被赋予“复活国”的地位。少

With regard to the problem of the legal relationship between the Empire of Korea and the Republic of Korea, the latter's government has shown the opinion that these two political entities are the same State and between them there exist the legal continuity and identity. According to the material named 'Confirmation of the Validity of the Multilateral Treaties contracted by the Empire of Korea' and issued by Korean Ministry of Foreign Affairs in 1986, Republic of Korea is regarded legally identical with the Empire of Korea in terms of international law subject. The change from the Empire to the Republic is only explained as the change of the national constitution, the form of government and the name of the State. The constitutional law of the year 1948, the first Korean constitutional law after World War II, also provides that the Republic of Korea was established in 1919, the year when the Korean provisional government was established at China, Shanghai.This view of Korean government s … More eems to be on the premise that in Korea there have existed a effective government since 1919. In this case, it goes without saying the 'government' means the above said 'provisional government' However, when the process of its establishment, the reality of its rule, recognition by the international society and the actual condition of its diplomatic relations with other States are taken into consideration, it seems to be hard to say that the provisional government had been an effective government which is an element of State. The corollary of this would be as follows : the Empire of Korea was extinguished as State ; the territory of the old Korean Empire became the territory of Japan ; likewise, Korean nationals became the Japanese nationals ; the Republic of Korea is a newly established State which became independent from Japan. In spite of these logical consequences, Korean government has been keeping its opinion regarding the problem of the legal relationship between the Empire of Korea and the Republic of Korea consistently. In some cases concerning the succession of multilateral treaties, international society also responded to the Korean government's attitude with the recognition of the legal identity between Korean Empire and the Republic of Korea.As we can see from the recent cases of the independence of Baltic States, even the states which had been thought to be annexed to other State for more than 50 years are sometimes treated as 'resurrected states' by international community. If the recognition of the identity between the Empire of Korea and the Republic of Korea does not injure the legal stability of international society so much, and could be considered as the way of recovering the national honor of Korean people and correcting the unjust result brought by the alien colonial rule, it may be considered that to Korea also the status of 'resurrected' State should be given. Less