조약의 국내법적 효력에 관한 한국 판례와 학설의 검토

Article 6, paragraph 1 of the Constitution of the Republic of Korea says “Treaties duly 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.” The goal of this article is to find out the exact meaning of “the same effect as the domestic laws of the Republic of Korea,” especially regarding treaties, by reviewing judicial decisions, the governmental practices and academic theories. The judicial branch has recognized that treaties can be directly applied in the courts and treaties approved by legislative branch have the same status as acts of the National Assembly. In case of treaties not approved by legislative branch(so-called the executive agreements) the judicial branch has not shown clear position so far concerning their domestic status in Korean legal system. However, overwhelming majority of academic scholars insist that treaties not approved by legislative branch have only the status as the decrees promulgated by the executive branch. However, author’s conclusion is that such position among academic circles is to bring about disaccord and improprieties in Korean legal system and all treaties, whether approved by legislature or not, have the same status as acts of the National Assembly.