무역구제조치의 사법 심사기준에 관한 소고 - WTO, 미국, 한국의 비교를 중심으로 -

Abstract

The World Trade Organization(WTO) allows member countries to impose trade remedy measures such as anti-dumping duties and countervailing duties on imported products from other countries if relevant requirements are met. Such measures are subject to judicial review according to the judicial system of each country as they are considered administrative actions by individual countries. This study reviews the judicial standards of review focused on comparative analysis of the WTO, the United States and the Korea. The comparison of the three standards indicates that the highest level of deference to trade remedy measures was observed in the U.S., in particular during the period when the Chevron doctrine was upheld. Under the doctrine, even if a court makes a different judgment from the administrative agency based on the relevant facts in the decision of a particular trade remedy measure, it is deemed lawful if the administrative agency's judgment is permissible under the legislative intent. Although the U.S. Supreme Court has overruled the Chevron doctrine recent, it seems unlikely that there will be significant changes in specialized areas like trade remedy measures in the short term. In the case of WTO regulations, the text appears to respect the judgment of investigative authorities to a similar extent as the Chevron doctrine, but in practical application, it seems to show a lower level of deference. Nonetheless, the WTO also does not allow de novo review. In the case of Korea, it appears that there is no unified standard of review for trade remedy measures compared to the United States and WTO cases. Furthermore, the degree of deference shown to the decisions of administrative agencies seems relatively low. Korean courts often evaluate both factual and legal issues from a de novo perspective when reviewing trade remedy measures, sometimes without giving due consideration to the expertise of trade remedy investigation authorities. Considering that trade remedy measures are based on international agreements, it is necessary to account for their unique characteristics and to establish independent standards for judicial review through a detailed examination of relevant international norms and comparative legal discussions.