조약의 정당성과 조약체결절차법 - 민주적 통제와 책임을 중심으로

Around 2015, intense social controversies erupted and spread to politics over some recently concluded international agreements by the Korean government. The National Assembly of the Republic of Korea, recognizing needs for democratic control to government-initiated treaty-making procedures, proposed a series of relevant bills. This paper takes the approach of understanding the issue as ensuring democratic legitimacy of treaties. In particular, I will focus on democratic control as well as democratic accountability as a conceptual tool for ensuring legitimacy. Democratic control provides democratic legitimacy by ensuring effective parliamentarian checks on the exercise of government power around treaty-making in terms of separation of powers. Democratic accountability is to grant democratic legitimacy by having officials who exercise their powers delegated by the sovereign fulfil their corresponding obligation to explain and justify conduct. Its normative ground can be found in Article 7(1) of the Constitution of the Republic of Korea. Chronic and conventional practices of government-dominated conclusion of treaties have caused serious democratic deficits. The Korean government has unilaterally determined whether a treaty should be approved by the National Assembly, and the National Assembly has exercised its consent power only for treaties to which the government has submitted. The National Assembly’s exercise of consent power to ratification of treaties, which is subject to the unilateral government determination, can be seen as preventing the National Assembly’s democratic control from being effective and sufficient. The government concludes treaties of various types not subjected under the consent of the National Assembly, but does not report to or inform the National Assembly in accordance with formal or informal procedures. While the government submits some treaties to the National Assembly either voluntarily or upon the request of the National Assembly, it is optional and selective. The democratic accountability for treaties outside of the consent power of the National Assembly is seriously deficit, if not absent. The grant of legitimacy to a treaty depends on the substantial guarantee of democratic control of the National Assembly over the domestic procedures of treaty-conclusion and the faithful implementation of the government’s democratic accountability to treaties concluded without the consent of the National Assembly. It can be realized by diverse means and ways ranging from constitutional practice to general and special legislations. It is to note that the more the government skips or make little account of the guarantee of control and the fulfillment of its accountability based on informal, but systematic procedures, the stronger the control and checkout of government authority by legislative power of the National Assembly be justified. Also, it will heighten the constitutional support to wider and stronger regulations through legislation.