헌법적 관점에서 본 국회의 동의를 요하는 조약 - 우리나라의 경우를 중심으로 -

다국어 초록 (Multilingual Abstract)

Treaty is a kind of international law rather than a national law. However, many countries in the world give a treaty a force as a legal norm in their territories. Article 6 Section 1 of Korean Constitution treats treaty like a national law by providing "Treaties duly concluded and promulgated under the Constitution and the generally recognized rule of international law have the same effect as the domestic laws of the Republic of Korea." In addition, for the treaty to be treated like a national law, it should acquire the consent !Tom National Assembly based on Article 60 Section 1 of Korean Constitution which prescribes "The National Assembly has the right to consent to the conclusion and ratification of treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the Slate or people with an important financial obligation; and treaties related to legislative matters."Then, do the treaties that are not enumerated in Article 60 Section 1 of Korean Constitution need not to have consent from National Assembly? If so, do those kinds of treaties still have a force as national laws as Article 6 Section 1 of Korean Constitution provides? The consent from National Assembly means democratic control from Korean people because the Congressmen are selected and, therefore, represent Korean people. I believe that the treaties that are not enumerated in Article 60 Section 1 of Korean Constitution and didn't get the consent from National Assembly should be treated not as national laws but as administrative orders which are positioned lower than the law in the hierarchy of legal norms. Generally speaking, the treaties in the same rank with administrative orders should undergo the judicial review by Korean courts according to Article 107 Section 2 of Korean Constitution. And only the treaties with the consent of National Assembly should have a force as national laws and undergo the judicial review by Korean Constitutional Court. I will examine the decisions by courts including Korean Constitutional Court as weil as real-world practices by Korean governments to analyze whether these criteria are steadily followed by them.

목차 (Table of Contents)

• AbstractⅠ. 문제의 제기Ⅱ. 대한민국 헌법 제6조 1항과 국제법질서의 존중Ⅲ. 대한민국 헌법 제60조 1항과 국회의 동의를 요하는 조약Ⅳ. 문제점과 해결방안Ⅴ. 결론 : 앞으로의 전망《참고문헌》

참고문헌 (Reference)

1 "헌법재판소 판례집" 헌법재판소 판례집 13-1 13 (13): 2001

2 "헌법재판소 판례집" 10 (10): 1998

3 정인섭, "한국의 국제법 관행" 서울국제법연구원 9 (9): 2002

4 정인섭, "조약체결에 대한 국회의 동의 거부" 서울국제법연구원 9 (9): 2002

5 임지봉, "조약의 국내법적 효력" 고시연구사 29 (29): 2002

6 이상철, "조약의 국내법적 효력" 한국법제연구원 (16) : 1999

7 RONALD D. ROTUNDA, "MODERN CONSTITUTIONAL LAW: CASES AND NOTES," West Group 2000

8 WILLIAM B. LOCKHART, "CONSTITUTIONAL LAW: CASES, COMMENTS, QUESTIONS" West Group 2003