북한의 외국인 형사재판과 영사접견권

Until Dec. 2014, five Americans and one South Korean were tried in North Korean criminal court. In trial process, North Korea observed investigation period and trial period stipulated criminal process act. And North Korea informed the foreigners right to consultation with attorney. All criminal trial against foreigners were held in Supreme Court, and ended in first instance. North Korean Supreme Court applied anti-state and anti-national activities clauses in Penal Code and sentenced severe punishment. Punishments which were sentenced before Kim Jong Un ascend the throne were not enforced. On the contrary, punishments which were sentenced after Kim Jong Un ascend the throne were actually enforced. And in enforcement of punishment, North Korea gave favourable treatment to foreigners compared with detained North Korean. North Korea guaranteed right to consultation with consul to America and American citizens via Sweden, protecting power. However, North Korea did not guaranteed right to consultation with consul to South Korea and South Korean. As a party state to consular relations convention, North Korea shall guarantee right to consultation with consul to South Korea and South Korean in criminal trial. Although relations of South-North Koreas are not general relations between states but sui-generis relations, it is difficult to find legal basis for not applying right to consultation with consul against South Korea and South Korean. Because right to consultation with consul have been regarded as customary international law. For guaranteeing right to consultation with consul to South Korea and South Korean, South and North Korea shall modify current Entry and Stay Agreement between two Koreas and shall include right to consultation with consul in that agreement.