국회의 동의를 요하는 조약의 해석과 적용

Abstract

The biggest reason for specifying the types of treaties requiring the consent of the National Assembly in Article 60, Paragraph 1 of the Constitution is the domestic legal effect of those treaties. According to Article 6, Paragraph 1 of the Constitution, treaties concluded and promulgated according to the Constitution have the same effect as domestic law, but there is a clear difference between treaties that require the consent of the National Assembly and those that do not. In other words, a treaty requiring the consent of the National Assembly has the same effect as a law enacted by the National Assembly, but a treaty that does not require the consent of the National Assembly has the same effect as an order subordinate to the law in the domestic legal system. Therefore, in concluding and ratifying a treaty that requires the consent of the National Assembly, strict examination is required, just like the legislative procedure of a law enacted by the National Assembly. Since treaties requiring the consent of the National Assembly under Article 60, Paragraph 1 of the Constitution have the same domestic legal effect as laws, the principle of clarity requested in enactment of laws should be applied equally to the interpretation of the provisions of treaties requiring the consent of the National Assembly. This is because most of the reasons for treaties that require the consent of the National Assembly, listed in Article 60, Paragraph 1 of the Constitution, restrict the governing behavior of the state, restrict the sovereignty of the people, restrict the freedom and rights of the people, or impose the obligations of the people. This is because it corresponds to what is specified. Therefore, Article 60, Paragraph 1 of the Constitution needs to be clearly expressed through clearer and clearer interpretation of the provision. In particular, it is necessary to clarify the concepts of treaties on security, treaties on important international organizations, treaties on amity, trade and navigation, treaties on restrictions on sovereignty, and treaties that impose significant financial burdens on countries or citizens. Abstract and generic adjectives such as “important” international organizations and “significant” financial burdens need to be avoided. As with the Treaty of Friendship, Commerce and Navigation, the scope of its application is too broad to be adjusted.