헌법상의 외교권한 배분과 구체화 입법의 헌법적 한계 - 조약체결에 있어서 의회 관여권을 중심으로

The Constitution"s Distribution of Foreign Affairs Power between the Executive and Congress  - A Study on the Congress" Approval to the Treaty-Making by the Executive -

&nbsp;&nbsp;A view that powers in foreign affairs should belong to the Executive(the Chief Executive) has been established on classical state theory. However, it is undue to adhere to this view on the exclusive power in foreign affairs by the Executive in a changed circumstances (so-called the “Domestication of International Policy”). On the other hand, it is also functionally reasonable that the Executive perform foreign affairs powers paying due regard to essence of foreign affairs and character in performing that. In consequence, it is most important how to be distributed the foreign affairs powers between the Executive and Congress.<BR>&nbsp;&nbsp;The scope and limits of foreign affairs power must be justified by a constitution. Because foreign affairs power is state power which is made and given by a constitution. Even if it is requested practically that Congress as the democratic representative organ of the people should control over the Executive&quot;s performing of foreign affairs, Congress is not supposed to take part in foreign affairs in a way to exceed the constitutional limit.<BR>&nbsp;&nbsp;The Constitution of the Republic of Korea vests the President with power “to concludeㆍratify treaties” (treaty-making power) in Article 73 and Congress with power of approval to the President in Article 60, § 1. The concrete distribution of treaty-making power between the President and Congress should be clarified by interpretation of the Constitution. It would seem to be that the Constitution of the Republic of Korea take a model which is “being under the exclusive power of the Executive + Congress&quot; participation” or “a combination under the Executive superiority”. <BR>&nbsp;&nbsp;Accordingly, the Executive has a initiative relating to treaty-making. In contrast, after a draft of treaty is confirmed and before the treaty comes into effect, Congress perform a function of democratic control by deciding approval or rejection about the treaty. The phrase, “to concludeㆍratify treaties” which is stated in Article 60, § 1, should be understood to mean a consent to be bound by all kind of treaties which are listed in Article 60, § 1.<BR>&nbsp;&nbsp;Even if Congress&quot; approval is not in itself a treaty-making power but a means of democratic control, sufficient information must be provided opportunely by the Executive, because congress should perform the function of democratic control effectively. Therefore, Congress has a right to demand information, which is substantial relationship with its decision - approval or rejection - on the ratification of treaty by the Executive.