經濟行政의 世界化― 行政의 統制規範으로서 WTO협정?― 대법원 2005.9.7. 선고, 2004추10 판결의 평석을 겸하여 ―

In our age of globalization, the World Trade Organization (WTO) exercisesextensive powers over national economic regulation policy, both implicitly andexplicitly. However, there have been few legal analyses of the constitutionallegitimacy of its harmonization process in Korea. This article analyses thelegitimacy issues from the viewpoint of the ‘rule of law’(Rechtsstaat) and theprinciple of democracy in the Korean constitutional and administrative law andreviews the compatibility of WTO-order with the national public interest relatedto economic regulation. Recently, the Supreme Court handed down a ruling repealing the Junlabuk-doprovincial assembly's ordinance, which sanctioned the preferential use of domesticproducts in school cafeterias. This ruling is used in this article as a case studyto show how far WTO-norm can influence national regulation decision and howthe compliance with the WTO-norm could be misconstrued in several respects. The court stated that the ordinance violated the governing principle of the GATT1994 Article III (national treatment), but the court did not explain whether andhow it permitted the judicial enforceability of WTO agreements in the nationalorder. This article criticizes the court’s decision, because it did not consider thenature of the WTO-norm in relation to the principles of reciprocity and theattitude of the Korean Congress, which did not declare that the WTO-norm wasdirectly applicable to the country. It cannot be denied, on the other hand, that the government needs to keep pace with the new developments in global economic regulation and the courtsmust also maintain the principle of consistent interpretation of international law. Globalization by WTO-norm could even provide the impetus for domesticadoption of international standards. Nevertheless, globalization must not hinderthe national government promoting public interest through the social regulation,especially because WTO does not yet possess sufficient legitimacy to take theplace of the national democracy rule. Thus, the aspect of legal research about‘Global governance’, such as building up legitimization of the privateinternational norm and public participation in the process of globalization, has tobe considered as well.