법원의 국제인권조약 적용 -판결문 전수조사를 통한 현황 진단 및 적용단계별 논증 분석-

The application of international human rights treaties may not be a day-to-day task for domestic judges in Korea. Statistics have, however, shown that it has become more frequent occurrence. Additionally, judgments providing concrete reasoning of domestic effect and status of international human rights treaties and interpretive principles of them began to appear. Nevertheless, many commentators have still argued that such recent practices are not yet sufficient to dispel concerns over the legal culture in Korea in which judges are mostly unfamiliar with international human rights treaties. Moreover, the provisions of these treaties are not sufficiently effective in application in Korean courts. With these concerns in mind, this article aims to examine the quantity and quality of judgments that apply international human rights treaties in Korean courts. For quantitative evaluation, a complete enumeration-based survey through an internal data search system on judgments that applied the seven core international human rights treaties shows variations in the number of judgments that applied the seven core treaties by each treaty, year, and litigation type. In addition, it provides statistics on the acceptance/rejection rates of claims involving violations of the core seven treaties in judgments. Using qualitative evaluation methods, this article divides judgments into two groups, and examines the reasoning adopted and steps taken by judges to arrive at different conclusions—judgments that accepted and judgments that rejected claims involving international human rights treaties. By applying such analytical methods, this research shows that Korean courts tend to avoid making determinations upon international law in dealing with cases involving violations of international human rights treaties; instead, Korean courts tend to base their decisions on more familiar, national laws. This tendency effectively prevents developing jurisprudence in international human rights treaties from being incorporated domestically. Based on the implications drawn from the empirical research on judgments rendered from Korean courts, this article offers suggestions to increase judges’ familiarity in international human rights treaties and assist judges in engaging with those human rights treaties, which ultimately helps the Korean Judiciary to fulfill its obligation to interpret national law in a way compatible with treaty obligations in order to protect and promote universal human rights.