헌법상 조약과 남북관계발전법상 남북합의서의 이원화 체계의 재검토

With the enactment of the Development of Inter-Korean Relations Act of 2005, the dualized structure between the treaty under the Constitution and the South-North Korean agreements under the Development of Inter-Korean Relations Act was established. However, controversy has persisted over the legal nature and effect of the inter-Korean agreements and the procedure for concluding it. Considering the legislative background of the Development of Inter-Korean Relations Act, the provisions of the inter-Korean agreement of this Act should be regarded as confirming that the provisions of the treaty under the Constitution apply to the inter-Korean agreements. Therefore, the inter-Korean agreements under this Act has the premise that they are legally binding agreements. But in practice, the Development of Inter-Korean Relations Act has not been applied only to legally binding inter-Korean agreements. The main reason is that the Act comprehensively defines the inter-Korean agreements as “all agreements concluded in the form of documents between the two Koreas” and that it is often unclear whether the agreement is legally binding because the authorities of the two Koreas have concluded it without a prior agreements on its legal nature. However, applying the provisions of the inter-Korean agreement to all inter-Korean agreements, regardless of whether they are legally binding, poses some legal problems. This article examines the dualized structure between the treaty under the Constitution and the inter-Korean agreements under Development of Inter-Korean Relations Act, and analyzes major legal issues, focusing on the cases of agreements signed by the two Koreas recently. In light of this review, this article presents the matters to be considered in relation to the conclusion of the inter-Korean agreements and future tasks in terms of legal system.