북한의 한반도 두 국가 ‘선언’에 대한 법리적 검토

It is time to abandon expectations of a German-style unification on the Korean Peninsula. This is because the fundamental framework governing inter-Korean relations—one that has borrowed from Germany’s special inter-German relationship despite fundamentally different historical backgrounds and processes of division—is now being dismantled. As North Korea denies and discards the notion of a one nation and the special relationship between the two divided entities, which has constituted the basic framework of relations between the two parties on the Korean Peninsula, a fundamental change of circumstances is underway ininter-Korean relations. In a reality where North Korea is advancing procedures to “legalize” this position as an established fact, South Korea, as the other party to relations on the Korean Peninsula, needs to examine North Korea’s “two states on the Korean Peninsula” declaration through the lenses of constitutional law and international law, while engaging in serious reflection on peace and unification on the Peninsula. This article first examines the background to North Korea’s declaration of two states on the Korean Peninsula and, as the legal nature of that declaration, analyzes the doctrines of unilateral acts and statehood, as well as their relationship with the theory of a special inter-Korean relationship. It also reviews the legal responses to the two-states declaration, focusing on the legal gap or potential conflict between the territorial clause and the peaceful unification clause of the current Constitution of the Republic of Korea. In particular, drawing on theories of judicial hard cases, this article seeks to explore new legal doctrines through which South Korea could legally accommodate the two-states declaration. Furthermore, for an international law analysis of the two-states declaration on the Korean Peninsula, this study examines legal doctrines such as the separation or dissolution of divided states, recognition of states, the principle of respect for effective boundaries, and the clean slate doctrine, in order to explore a logical foundation under which a two-state relationship between North and South Korea could serve as a process leading not only to peace on the Korean Peninsula but ultimately to integration and unification.