우리나라에서의 조약의 국내법적 효력 - 세계무역기구(World Trade Organization) 협정의 국내법적 효력을 중심으로 -

In the past, international law was a strictly separate legal system from the national legal systems. However, the application of strict dualism have gradually declined over time as number of treaties that were believed to be within the realm of the national 'sovereignty' have come into effect in the areas of economy, culture and human rights. However, it is still up to the national sovereignty to determine the extent or method of incorporating that international law when nations adopts an international law into their domestic legal systems. As for the case in Republic of Korea, international law is incorporated into the domestic legal system without a need for an act of transformation into a domestic legislation. The Korean Constitution endows treaties and general rules of international law with the same effect as the domestic laws. In 2005, the supreme court of Korea tried a case regarding a regulation passed by the provincial district assembly that is in conflict with the World Trade Organization (hereinafter WTO) agreement and held that it should be nullified. This ruling drew significant attention to the case as the court seemed to explicitly admit the direct effect of WTO agreement in Korea. In this paper, there have been through examination of the related legislations and cases in the United States. Europe, Japan and Korea to better understand the meaning of such court ruling. After the research on the provisions of the Uruguay Round Agreement Act of the United States., EU Council Decision and some judicial cases, this paper also focuses on the factual finding that Korea’s major trade partners have been and still are reluctant to give ‘direct effect’ to WTO agreement. Therefore, this paper argues that it is desirable to avoid nullifying Korean law claimed to be infringing treaties if possible. Instead, Korea can pursue to interpret domestic law to be consistent with the WTO agreement and try to correct its practices. This paper thus attempts to outline an alternative to harmonize WTO agreement with domestic law. First, the possible conflicts between treaties and domestic law can be prevented by learning from the French model. The preventive control (contrôle préventif) system in France reviews the conformity with the domestic laws before signing treaties. Second, the German principle: ‘the public international law of friendliness (Völkerrechtsfreundlichkeit)’ can be applied. According to this principle, a nation have an intention to legislate the domestic law to be consistent with treaties and thus this intention should be considered in the course of interpreting laws. Third, ‘the friend of the court (amicus curiae)’ can be used to raise the effectiveness of treaty interpretation and its application. According to this norm, a legal expert on treaty matters may participate in the litigation to give his advice as the third party. Lastly, a nation can approach differently when the conflict involves ‘non trade concerns’ in the WTO system such as values on food security and sustaining the environment. A court may regard such disputes as a political question and reserve its legal decision until this non trade concern is settled. Furthermore, there remains one crucial point that implementing the WTO agreement can bring greater economic transparency that strengthens corporate competitiveness of the nation. On the other hand, implementing and giving direct effect to the WTO agreements can also be a source of conflicts when the domestic law is inconsistent with the WTO. In this dilemma, it is to be hoped that Korea implements treaties such as the WTO agreement in good faith while flexibly enjoying its permitted exceptions in full.