行政府協定과 ‘非同意條約’

Abstract

Is there an executive agreement in the Korean legal system? In Korea it is said that executive agreements are international agreements without the consent of the Congress as other countries do. Some scholars also say that executive agreements exist or should be accepted in the Korean legal system. It is true that there are international agreements without the consent of the National Assembly(= the Congress) in Korea. I will call them ‘non-agreed treaties’. But are executive agreements and non-agreed treaties the same? It is related to the Article 60, paragraph 1 of the Korean Constitution. It reads as follows: “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, trade 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.” According to the Article 60, paragraph 1 of the Korean Constitution, treaties might be divided into three categories in the Korean legal system: ‘agreed treaties’, ‘non-agreed treaties’ and ‘gosiriu’ treaties. Agreed treaties are the international agreements with the Consent of the National Assembly according to the Constitution. Non-Agreed treaties are ones without the consent of the National Assembly. Gosiriu treaties are not required to get the consent of the National Assembly, the deliberation of the State Council, nor the proclamation by the President. The constitutional requirement to conclude treaties doesn't apply to Gosiriu treaties, which are made by the foreign minister. In my view Gosiriu treaties might be called a kind of international agreements in simplified form in Korea. Korean non-agreed treaties can be compared to international agreements without the consent of the Congress in France or sole executive agreements in U.S. And Gosiriu treaties are also similar to executive agreements in France or implementing executive agreements in U.S. Anyway it seems to be inadequate that both of non-agreed treaties and gosiriu ones are just called executive agreements because we might overlook important differences between them. Why not just calling each of them non-agreed treaties or gosiriu ones, instead of calling them executive agreements?