‘남북기본합의서’의 법적 성격에 관한 비판론적 검토

The purpose of this paper is to re-analyse critical approach on the legal nature of the Agreement on Reconciliation, Non-aggression, and Exchanges and Cooperation between South and North Korea (the Basic Agreement of Inter-Korean), to improve inter-Korean relationship in the commemoration of 20 years the sign of the Agreement. The main reason for ignoring the reality of the Agreement stems from having normative effect could not be assured. Discussions on the issues of academic theory based on our government and the judiciary's position of the legal nature of the Agreement is reviewed from a critical perspective. To help the understanding of the Agreement, it is necessary to find domestic and international backgrounds adopted the Agreement, outcomes and processes of the historical backgrounds of its significance, and contents. The MB’s government has actively promoted the “nuclear-free. Open. 3000 policy” and emphasized the Basic Agreement between South and North Korea while simultaneously undermining, what is called ‘engagement policy’ the last administration. On its part, North Korea abrogated the provisions of the Basic Agreement concerning the western sea border between South and North Korea on January 30, 2009. In theory, this occurred because the Agreement lacked regulatory power. I will review the legal nature of the Basic Agreement between South and North Korea and then make a critical assessment of the current government and judiciary's stance with regard to this matter. The debate on the legal nature of the Basic Agreement between the South and Korea and North Korea is focused on the issues of whether the Agreement is a legally binding treaty or merely a gentlemen's agreement, and also whether the Article 60, Paragraph 1 of our Constitution requires ratification of the Agreement by the National Assembly. A majority of scholars believe that the Agreement is a legally binding special treaty which will come into effect according to the special procedure specified in the Article 6 of the Constitution. However, the current administration's position is that the Agreement is a political declaration that does not create binding international law. The Supreme Court and the Constitutional Court have also mistakenly ruled that the Agreement is not a legally binding treaty or associate treaty between States. The National Assembly should ratify the Agreement which was adopted 1991. 12 and came into effect on 1992. 2. 19. as a specific treaty or associate treaty via the procedures designated in the Article 60 Paragraph 1 of the Constitution. The realistic reconciliation and mutual prosperity of inter-Korean relationship should be made re-aware of the importance of the Agreement.