국제관습법에 직접 근거한 법규명령 제정 : 본부영사확인 규정에 대한 검토

With mild controversies within the executive branch, the Ministry of Foreign Affairs and the Ministry of Justice of South Korea enacted the “Regulations on the Issuance of Apsotilles and Certificates of Authentication” (Presidential Decree) in 2021. The Decree was deemed an unprecedented attempt to implement international law directly into secondary legislation, in the sense that it incorporated the 1961 Apostille Convention and particularly the rules of customary international law related to authentication or legalization performed by the Ministry of Foreign Affairs into domestic legal orders without an act of the National Assembly. In view of a new Article 7 (1) of the Decree, which provides for the Ministry’s power to reject applications for a certificate of authentication where the submitted public documents are clearly false, including factually and substantively, the practice of implementing international law into the Decree has raised some consitutional questions in terms of Articles 37, 75, 95 of the Constitution, which require, inter alia, that any restriction of freedoms and rights of citizens shall base itself on the authority of primary legislation enacted by the National Assembly or the delegated powers thereby conferred upon the executive branch. In this regard, this Article seeks to identify the legal basis of Article 7 of the Decree from the customary international law rules regarding the prerogative of States to refuse certification of such false documents as evidenced by State practice and opinio juris, and to establish that such rules have the same effects as primary legislation domestically. But these same effects as primary law do not go without limits as to the extent of which rules of customary international law could provide for the authority to enact secondary legislation directly implementing those rules. This Article contends that the text, structure, and objectives of the Constitution authorize customary international law rules to be interpreted as delegating powers for secondary legislation only when such rules will be directly applicable in courts as self-executing rules. This approach mirrors the way in which South Korean courts interprets treaties and other international agreements on a case-by-case basis to determine whether particular provisions therein are of self-executing nature.