국내법의 국제법 합치해석에 관한 일고

Interpreting domestic law consistently with international law is functions as technique to implement international law in a domestic legal system. The obstacles caused by the lack of direct applicability or self-executing character of a treaty may be circumvented by consistent interpretation of domestic law with international law or standard. This is the reason why much interest and attention is given to it. Especially scholars and practitioners enthusiastic in protection of human rights through international human rights instruments emphasize the usefulness and importance of the consistent interpretation of domestic law according to international norms, calling it as ‘indirect incorporation’. In this article, the concept of the consistent interpretation, its history and significance, its formal and substantive basis, conditions and limits put upon it are reviewed. The author tried to clarify that interpreting domestic law in line with international law should not be done when there is manifest intent to derogate international law on the side of the legislature. In addition, it is pointed out that the judiciary should not encroach the constitutional division of powers by expanded and arbitrary use of skill of consistent interpretation. The author argues that Korean courts are under the legal obligation to perform consistent interpretation. The legal basis suggested for such obligation is paragraph 1, article 6 of the Korean Constitution which provides the principle of respect for international law. Even if this legal obligation is not recognized, courts may do consistent interpretation on the basis of their own discretionary power with regard to interpretation of law. Finally, it is strongly recommended that Korean courts, which are told not to be international law friendly, take consistent interpretation more aggressively as their tools in both maintaining the unity of Korean legal system and implementing international law in Korean legal system.