조약의 자기집행성 판단기준에 관한 미국연방법원의 법리 : 한국 법원에 대한 시사점

• 영문명: A Study on the Jurisprudence of the United States Federal Courts on Criteria for Distinguishing Between "Self - Executing" and "Non - Self - Executing" Treaties : Some Lessons for the Korean Court
• 발행기관: 세계헌법학회 한국학회
• 저자명: 주진열(Jinyul Ju)
• 간행물 정보: 『세계헌법연구』세계헌법연구 제11권 제2호, 137~154쪽, 전체 18쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.12.01

영문 초록

Although the article 6 (2), often called as the supreme clause, of the United States("U.S.") constitution declares that all treaties shall be the supreme law of the Land, the U.S. federal courts distinguish a self-executing from a non-self-executing treaty. A self-executing treaty can be defined as a treaty that may be enforced in the courts without legislation by Congress, and a non-self-executing treaty as a treaty that may not be enforced in the courts without legislative implementation. In 1829, the distinction between self-executing and non-self-executing treaties was firstly introduced by the U.S. Supreme Court in Foster v. Neilson case. In this case,the Court ruled that a treaty may be judicially unenforceable when the parties to a treaty intended it to be so. After the Supreme Court's decision in Foster v. Neilson case, in many cases, has the lower-federal circuit courts introduced too various criteria in distinguishing a self-executing treaty from a non-self-executing treaty, such as Unilateral intent of the U.S. President or of Congress; the language and purpose of the agreement as a whole; the circumstances surrounding treaty's execution; the nature of the obligations imposed by a treaty; the availability and feasibility of alternative enforcement mechanisms; the implications of permitting a private right of action; the capability of the judiciary to resolve the dispute, and so on. It seems that the consequence of introducing these various criteria may occur some confusion on the self-executing character of a treaty. It might be true that the doctrine of self-execution suffers disarray even in the U.S. In considering that the article 6 (1) of the Korean constitution which resemble the supreme clause of the U.S. constitution, the Korean courts could get some valuable lessons from the jurisprudence of the U.S. courts on self-executing treaties issue. First of all, the Korean courts don't have to declare that every treaty under the article 6 (1) should always be executed by the courts. Indeed, in some cases, the Korean Supreme Court and the Constitutional Court have decided that just because of the existence of the article 6 (1) itself, a treaty has the character of self-executing. In stead of doing that way, it is strongly recommended for the Korean courts to carefully consider the reason that the particular treaty before them are claimed to be judicially enforceable or unenforceable. Above all, the Korean judiciary branch should take the following elements: the intent of the parties to a treaty; the precatoriness and/or vagueness of a treaty provision; judicial abstention based on policy consideration. Facing increasing number of the cases involving international law issues in these days, it is very time for the Korean courts to develop and adopt some criteria for distinguishing between self-executing and non-self-executing treaty provisions.

목차

Ⅰ. 서론

Ⅱ. 체약당사국의 의도

Ⅲ. 사법판단적합성과 권력분립원리

Ⅳ. 사인의 소권

Ⅴ. 결론

ABSTRACT