우리나라에서의 조약의 국내적 효력과 수용체제에 관한연구

Domestic Effect and Incorporation System of Treaties in the Republic of Korea

Treating are international written agreements entered into by States to which international legal norms apply, regardless of whether they are embodied in one or more than two instruments, or whether they have particular names. Some among such treaties only embody confirmation of basic positions with regard to a particular issue, or establishment of direction rather than specific plans for implementation, thus it is not difficult to domestically apply them. However, domestic effect of treaties have become a very practical issue today as a number of treaties assume domestic incorporation with regard to international economic exchange, such as tax reduction, discontinuance of subsidies towards domestic companies, special protection and guarantee offered to foreign capital investment. Regarding this issue, the Constitution of Korea provides, "Treaties duly concluded and promulgated under [the] Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea: However, the Constitution does not specifically provide with which level of domestic law "treaties" and "generally recognized rules of international law" have the same effect. Therefore, there are differences of opinions and conflicts of theories as to the meaning of "generally recognized rules of international law: Therefore, it arrives at the Issue of the jurisprudential relationship between international and domestic law, and the domestic incorporation and effect of international law. Issues as to the domestic effect of treaties do not only involve the attitude of the Constitution of Korea as to treating. There is another issue of passage of domestic review procedure as an administrative and legislative procedure. Incorporation of treaties and the possibility of review by judicial procedures also need to be reviewed. In other words, studies need to be done on the domestic incorporation system of treaties.