조약과 일반적으로 승인된 국제법규의 법적 효력 – 헌법재판소와 대법원의 해석을 중심으로 -

Abstract

Article 6 (1) of the Constitution states, “The treaties concluded and promulgated under the Constitution and the generally recognized international laws has the same effect as the internal law.” In this regard, the Constitutional Court concluded that a treaty as referred to herein is an explicit agreement that has legal effect between states, and the relationship between rights and obligations between the parties. In addition, as a distinguishing criterion for judging whether a treaty is authorized, the Court of Justice is presented in two ways : a formal aspect and a substantive aspect. On the other hand, the Constitutional Court ruled that the general international treaties and international. Although the judgment seems to be regarded as a concept of a generally accepted international law, Conventions that correspond to general international treaties to which Korea has not acceded are already acceded to. Because the treaty is in effect as a manufacturing method, 'Treaties approved in the provinces which Korea did not join but many countries join' should be seen as difficult to find any more. A treaty concluded and promulgated under the Constitution pursuant to Article 6 (1) of the Constitution has the same effect as the domestic law. In this regard, the Constitutional Court first decided on what “domestic law” means in detail. It is made clear that the Constitution is not included in the seeing it happen. In addition, the Constitutional Court has a question on what order of effect has the effect of the legal system of domestic law. Based on the treaty supremacy of the Constitution, the court has the legal effect on treaties concluded with the consent of the National Assembly. Although it does not explicitly state whether it has the effect of domestic legal status, it is an indirect interpretation can be regarded as having the same effect as a command. Important issues that may arise in treaty practice in the domestic application of treaties and generally accepted international law. One issue is how to set the effective date of the treaty, and the national government in concluding and ratifying the treaty. In the case where a treaty requiring the consent of the meeting is being implemented in Korea without the consent of the National Assembly, the validity of the treaty is recognized. In the former case, the date of entry into force of the treaty at the time of conclusion of the treaty is directly [Keywords：treaty, general approval international law, conclusion and promulgation of treaty, same effect as domestic law, consent of the National Assembly related to the treaty.