조약의 체결 및 비준 과정에서의 권한쟁의 문제- 사전적ㆍ사후적 통제구조의 재정립 -

This article examines the constitutional allocation of powers in the treaty-making and ratification process under the Korean legal order, focusing on the recurring institutional disputes that arise between the executive and the legislature. In modern international society, treaties not only facilitate inter-state cooperation but also function as normative instruments that shape individual rights and obligations and exert substantial influence on domestic law. Although the Constitution grants the President the authority to conclude and ratify treaties while requiring the National Assembly’s consent for certain categories of treaties, Article 60(1) provides only a broadly framed scope, and no statutory criteria exist to guide the consent determination. This indeterminacy has allowed structural competence disputes to persist. The Constitutional Court has adopted a cautious stance toward judicial intervention in matters involving foreign affairs and national security, emphasizing political sensitivity and maintaining restraint regarding the policy necessity of treaties. At the same time, the Court acknowledges the possibility of constitutional review over procedural legality and observance of the separation of powers. In practice, however, the Court has minimized judicial influence on foreign policy by narrowly interpreting party standing in competence disputes and by taking a restrictive view of treaty status. Because defects in the domestic process cannot be effectively remedied once a treaty enters into force internationally, robust ex ante control mechanisms are essential. Ultimately, disputes surrounding treaty-making demonstrate the structural tension between domestic separation-of-powers principles and the binding nature of international legal obligations. To clarify the boundaries of institutional powers through the Constitutional Court’s judicial interpretation and adjudication and enhance both democratic legitimacy and administrative efficiency by constitutional or legislative clarification of treaty categories and procedural requirements is needed, along with institutionalization of information-sharing and prior consultation between branches. Strengthening the legal framework governing treaty procedures is crucial not only for transparency and accountability domestically but also for reinforcing Korea’s credibility as a responsible rule-of-law state in the international community.