GATT 1994 제20조(a) 공중도덕 보호를 위한 예외에 관한 연구

A Study on the Public Morals Exception of GATT 1994 Article XX(a): Focus on Some WTO Cases

The GATT/WTO system, which is aimed at free trade, prohibits discrimination between imported goods, and between imported and domestic goods, but exceptions are allowed in certain cases. Such exceptions are listed in GATT 1994 Article XX. The public morals exception is shortly stated in the first clause of Article XX of the GATT 1994, which is “necessary to protect public morals”. Therefore, questions such as the concept of ‘public morals’, who is in charge of deciding such public morals, what is the meaning of ‘necessary’ are left to be solved through interpretation. There are various ways to interpret the GATT/WTO agreement, but this paper focuses only on the interpretation of the Panel and the Appellate Body of the WTO DSB (dispute settlement Body). The Panel and the Appellate Body consider the term “public morals” refers to the standards of right and wrong behavior maintained by or on behalf of a community or nation, and the content of public moral for members may vary with time and space. In order to precisely interpret it, cultural, ethical, religious values, and many other factors should be considered. For the purpose of the interpretation of “necessity” to protect public morals, following elements should be evaluated and be “weighing and balancing”; (a) the importance of the interests or values that the measures are intended to protect, (b) the extent to which the measures contribute to the realization of the ends respectively pursued by the measures, and (c) the respective trade impact of the measures.