국내법원의 독도판결에 대한 고찰

Abstract

The exercise of judicial jurisdiction through domestic court rulings in legal disputes constitutes an important aspect of states’ implementation of international law. Domestic court rulings that violate international law are recognized as legitimate only within the domestic legal order. A debate, consequently, is in progress upon the establishment of state responsibility for domestic judgments that contravene international law. Research on domestic court rulings relating to international law is significant in this respect. In this paper, a total of eight court rulings were analyzed, and which are involved domestic disputes relating to Dokdo. The Constitutional Court of Korea, through its decision that the territorial rights can be the subject of constitutional petitions as a prerequisite for the remedy of violations of the basic rights of the people, provided a theoretical basis for the exercise of judicial jurisdiction. However, except for two cases involving the unconstitutionality of the ratification of fisheries agreements, the remaining decisions of domestic courts regarding Dokdo resulted in dismissals, limiting the extent to which court interpretations on substantive issues were reflected. It is natural for a dismissal to be made because it does not meet the formal and/or procedural requirements, but in the case of a case where a dismissal is made on the grounds that there is no legal interest, it is necessary to consider the scope of interpretation. Domestic court decisions serve as the final interpretation of the law, and therefore, they have a direct or indirect impact on policy-making upon Dokdo and its implementation. Although the judicial branch does not have to make decisions while considering the policies of the executive branch, a judgment with theoretical integrity should be made along with the establishment of an orderly and accurate legal logic structure so that the executive branch and the legislative branch can understand. Efforts to strengthen the capacity in international law in judicial branch and legal practice are strongly required.