조약의 국내법 수용에 관한 비판적 검토

The status and effect of international law within the Korean legal system is determined by Article 6(1) of the Constitution of the Republic of Korea which states, “Treaties concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.” Following this monistic approach taken by the Constitution, treaties become a part of Korean law without having to undergo transformation of some sort. “Korean law” means laws enacted by the Korean legislature. Treaties have the same effect as Korean law. In the event there is a conflict between any treaty and laws enacted by the legislature, the position firmly taken by academic opinions, cases and the government is that the law made last in time and special laws prevail. We see how the foregoing position is implemented through the invalidation of municipal ordinances which are against the WTO Treaty or through cases which accept changes in criminal law and the application thereof relating to tax evasion pursuant to the WTO treaty. However, new issues arose after the Republic of Korea ratified major human rights treaties in the 1990s. As Treaty Bodies established under human rights treaties started reviewing the State Party Reports of the Korean government and issued recommendations thereto and the Human Rights Committee issued its views on individual communications, it became apparent that certain existing domestic laws and policies were in contravention of certain human rights treaties. Therefore, some started to argue that certain existing cases should be amended based on the human rights treaties which were ratified. This thesis compares and analyzes the judiciary’s analysis regarding treaty acceptance under Korean laws in general cases and cases relating to human rights. As a general matter, the judiciary which shows an “exceptionally open attitude toward treaties” shows a tendency to limit the acceptance of human rights treaties. The analyses of the Supreme Court of Korea and the Constitutional Court of Korea regarding the acceptance of human rights treaties are not consistent and their logic is difficult to understand. Human rights treaties are used to support certain issues while in other issues there is no mention of human rights treaties. It is difficult if not impossible to know by what standards the Courts determine which international human rights laws/standards are accepted into Korean law. Further, there are cases where the Courts refused to apply human rights treaties although there were strong views that human rights treaties should have been applied. And even in cases where human rights treaties seem to have been accepted, instead of analyzing a certain human rights treaty and interpreting the Constitution and existing Korean laws in accordance therewith, courts have just analyzed the Constitution and existing Korean laws independently and used human rights treaties to supplement their argument by stating that a certain human rights treaty also support their conclusion. Furthermore, the Supreme Court and the Constitutional Court have dismissed the views of Treaty Bodies by stating that they do not have the force of law but the Courts do not state their principles for interpreting human rights treaties. In addition, Korean courts do not attempt to interpret the ordinary meaning of human rights treaties which have autonomous meanings independent from the legal systems of the parties thereto, but inversely interpret human rights treaties by applying the interpretation of existing Korean laws. This has resulted in inconsistent and arbitrary interpretations. Courts should explain and justify their decisions through sound reasoning. Courts have the responsibility to persuade that their decisions of human rights treaties are reasonable and appropriate, and in accordance with the spirit of the Constitution and the purposes of the ratification of the human rights treaty, instead of just stating that they have the power and authority to interpret the human rights treaty. Unfortunately, cases which merely state conclusions without providing sound reasoning regarding how the effect of human rights treaties differ from general treaties, and if they do differ in what ways they differ, the reasons for refusing to accept the interpretation of Treaty Bodies, and the relationship between the Constitution and human rights treaties, are often unpersuasive. Further, this will also prevent the purposes of joining the human treaty from being fulfilled. The bureaucratic approach taken by Korean courts so far (for instance, by dismissing the Treaty Bodies’ interpretation of human rights treaties by merely stating that it is the Korean courts that have the authority to interpret the treaties), should be overcome by courts’ efforts to examine the real issues, such as the purposes of the human rights treaty and whether an interpretation by a Korean court of a human rights treaty was reasonable.