조약의 체결·비준에 대한 국회의 조건부 동의

Abstract

In most of States the executive has authority to negotiate, sign, ratify or other adhere to treaties, but the legislative may also have some voice in treaty-making process. In the Republic of Korea, too, article 60, paragragh 1 of the Constitution says “The National Assembly shall have 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, commerce and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will burden the State or people with an important financial obligation; or treaties related to legislative matters.” Main theme of this paper is whether the Korean National Assembly may decide “yes or no” only regarding the treaty transmitted by the Executive or add/ change some conditions for the treaty ratification. In this paper author categorized legislative conditions into amendments, reservations, interpretative declarations and provisos, and analysed each condition’s legality and its legal effect. Conclusion can be summarized like following. The National Assembly’s decision to ask amendment of the treaty itself should be regarded as the rejection of its approval. It may add, delete or change the reservations for multilateral treaty suggested by the Executive. After legislative approval with some reservations, the Executive can not change them without legislative additional approval. The National Assembly may add, delete or change the interpretative declarations suggested by the Executive. The National Assembly may add some provisos for the treaty ratification. All legislative conditions are binding upon the Executive.