WTO 체제하의 ‘국내법 그 자체’에 대한 제소의 분석과 우리나라의 대응방안

Under the GATT system, Panels have dealt with complaints against not only ‘legislation as applied’, through their jurisprudence, but also ‘legislation as such’. It appears to be well established that mandatory and discretionary legislation should be separated from each other and only mandatory legislation can be challenged before a panel. WTO provided a legal basis for claims against ‘legislation as such’ in the Agreement Establishing the World Trade Organization, but it did not lay down the distinction between mandatory and discretionary legislation. In particular, the Panel found in the US-Section 301 Trade Act case that even domestic law with a discretionary nature can be challenged in light of the obligations under Article 23 of the DSU, and it caused difficulties for the WTO Members with respect to the distinction. Besides, the Appellate Body pointed out that it is necessary to apply the distinction, varying from case to case because the distinction is not easy and the types of discretion are different. The writer argues that claims against ‘legislation as such’ should be allowed in a limited way in order to protect legislative sovereignty of the WTO Members, taking into account that it is possible to challenge ‘legislation as applied’ at any time. The followings are the criteria that can be regarded as mandatory legislation. First, the executive authorities must be the subject of the action according to the legislation in question. Second, the obligations under the legislation must be imposed on the executive authorities. Third, the legislation concerning the action of the executive authorities must not contain undefined legal terms(“unbestimmter Rechtsbegriff”). Fourth, domestic law consists of administrative regulations and administrative rules, including laws. Until now, Korea has often brought challenges to ‘legislation as such’ of the other Members. For the purpose of winning the claims, our government has to examine the above criteria relating to the distinction from mandatory and discretionary legislation. In addition, although there are few cases that other Members challenged our ‘legislation as such’, we should keep in mind the criteria when enacting related laws. Most of all, our government has to be careful not to be inconsistent with Article 23 of the DSU even though the legislation at issue has a discretion in nature.