한미 FTA의 국내법적 문제에 대한 시론적 연구

Although the Korea-US FTA should have been reviewed from the perspective of the national effect and legal issue in the process of negotiations, Korea-US FTA has not been reviewed faithfully in light of national law, but only in light of international law or trade law, because it is a kind of free trade treaties. In addition, the South Korea have ratified and agreed unconditionally to contents of Korea-US FTA in comparison of U.S. But U.S. has legislated the provisions to limit legal effects in nation, when they legislated law related to implementation of Korea-US FTA. The treaty shall take the same status as the legislation in the South Korea. Given these facts, it is necessary to review Korea-US FTA's impacts and issues from the perspective of national law. Nevertheless, there have been only a few studies in regard to this point. Provisions of Korea-US FTA should be reviewed carefully whether it has included one having directly binding force to domestic legal relation or becoming the trial norms in domestic courts. Korea-US FTA can affect the administrative organization, administrative procedures and administrative remedies quite a few in the South Korea. In particular, the Joint Commission should affect quite a few power structure of state and legislative power, administrative power and judicial power. And some of Korea-US FTA provisions on compensation conflicts with the regulation of Korean law on it. Indirect expropriation under Korea-US FTA has raised legal issues considerably. We, South Korea, should examine if it is legitimate or not for the Agreement to be implemented by the Implementation Law like U.S., which has denied the legal effects of Korea-US FTA in national wide. And they also require review that it is legitimate or not for the treaty, a kind of FTA, to have relative effects under the domestic law. The domestic legal status of Korea-US FTA in the South Korea should be accepted to the extent of U.S. implementing it. When the dispute between state agencies and an individual(individual investors) associated with public authority is subject of ISD, considerations of public interest can be neglected. They require the more in-depth study about impact of Korea-US FTA upon domestic law from now on.