자유권규약위원회 개인통보제도 결정의 국내적 이행을 위한 방안 小考

This article aims to explore a possible way to implement the views adopted by the human rights treaty monitoring bodies after considering individual complaints. While various international human rights instruments provide for the individual complaints mechanisms, the Human Rights Committee has found violations of the rights in the International Covenant on Civil and Political Rights (ICCPR) by the Republic of Korea in the eight cases. Yet the views adopted by the Human Rights Committee have not been implemented in Korea, since there is no domestic implementation mechanism. Recently various scholars and even the government have examined the options to implement the views including the amendment of the Criminal Procedural Act and enactment of special law for the implementation, but they do not seem to grasp the nature of the views and to be viable option for the legal system of Korea. Firstly, it is necessary to examine the nature and effect of the views adopted by the human rights treaty monitoring body. The views, adopted by the Human Rights Committee, are not legally binding, expressed by the Human Rights Committee itself. However, it is unreasonable to consider the views as recommendations, as the competence of the Human Rights Committee to receive and consider individual complaints is recognized by the State Parties to the Optional Protocol to the ICCPR. Therefore, in light of the object and purpose of the Optional Protocol, State Parties are obliged to establish domestic implementing mechanism for the views of the Human Rights Committee. The failure to take necessary actions to implement the Optional Protocol may constitute a violation of the Optional Protocol. The fact that the negligence of the views draws criticisms for being in breach of the treaty obligations demonstrates the views are of quasi- judicial nature. Secondly, with the nature and effect of the views discussed the above, the best suitable way to implement the views in Korean legal system would be the enactment of special law of procedural and administrative nature. Since the views are not legally binding per se, and the view requests appropriate compensation, restitution, rehabilitation, and the other measures of satisfaction as effective remedies, of which are mostly inapt for judicical procedures, it is not appropriate to include the views of human rights monitoving bodies' in the ground to retry a case in Article 420 of the Criminal Procedure Act. Likewise, it is also inappropriate to provide monetary compensation based on the State Compensation Act, as the acts of public officials would be lawful in domestic legal system. Hence, the domestic legislation for the implementation of the views should provide for the various types of effective remedies, which would be decided by a commission consisted of the government agents, scholars and human rights activists. Their decisions would be quasi-judicial and be recommended to the administrative, the legislative and the judiciary. The existing legislation, Act on the Compensation and Honor-Restoration of the Democratization Movement Activists, will be an example for the possible legislation to implementthe views of the human rights treaty monitoring bodies.