우리나라에서의 국제형법의 전망과 과제- 국제형사규범의 국내법원을 통한 국내적 이행을 중심으로 -

Although treaties as the dominant source of international law have witnessed both the dramatic growth in the number of growth and the growing interaction between international law and national law, in the practice of courts in South Korea treaties have not been widely used. As far as judicial decisions of South Korean courts are concerned, cases involving questions of international law to a greater or lesser degree are virtually relatively scarce. This fact will create some difficulties for those who might be interested in such an issue. However, the subject is of increasing importance, because in South Korea today, matters of social concern such as education and economics fall within the ambit of international regulation. International law is more than ever aimed at individuals. Thus, some questions are raised: Can individuals invoke international law before domestic courts? Do the South Korean courts in such cases, as agent of international legal order, perform their functions properly? The issue which is to be examined in this chapter is the extent to which South Korean courts will give effect within the domestic system to treaties which are contrary, or not contrary, to domestic law. The Section One explores those raised questions. Section Two offers an analysis of status of international criminal norm in domestic legal system. Section Three traces conflicts of norm. Section Four explores interpreting domestic law via international criminal norm (indirect application). Section Five analyses direct application of international criminal norms. Section Six maps out some possible reflections on the use of international criminal norm by domestic courts: Have the South Korean courts, as agent of international legal order, performed their functions properly? For this essential question, the approach of South Korean municipal courts to treaties has been characterized. There were exciting developments in court decisions as well in South Korea. Retrospection on the role of domestic courts in treaty enforcement since the establishment of the Republic of Korea in 1948 enables us to that courts’ practice overshadow a few positive aspects associated with the negative sides of the majority of court decisions. Even the positive aspects of some rare decisions are virtually not of marginal relevance for the development of international law in South Korean courts that are apt to be reluctant to use treaties as a source of domestic law, appraisal of the decision of the Supreme Court at the Dong-A Ilbo case and the decision of District Court Seoul at the conscientious objection case, though limited in number, is necessary to ensure their optimum participation in international legal order.