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Korea’s Judicial Interpretation and Application of International Law

Part Name
Articles
Title
Korea’s Judicial Interpretation and Application of International Law
Author(s)
Myung-Hyun Chung
Publication Year
31-May-2020
Citation
Vol. 10 Issue. 1 Page. 79-102, 2020
Publisher
한국법제연구원
Keyword
Korea’s judicial review; international treaty; international agreement; direct applicability; treaty ratification; implementing legislation
URI
http://www.klri.re.kr:9090/handle/2017.oak/9803
Abstract
As the number of Korea’s conclusion of treaty has increased, stakeholders
are more interested in how Korean courts incorporate and apply the treaty provi sions in cases brought before the Korean judiciary. According to the Constitution
in Korea, the international treaty has the same effect as domestic law; however,
the court is reluctant to make a decision or reason on the basis of international
treaty. In most cases, Korean courts ruled that the treaties do not accord with the
individuals’ or entities’ rights to refer to the treaty provisions as the direct cause
of action in Korean courts. Also, the prevailing view is that the treaties without
ratification processes are considered to have the same status as the enforcement
decrees or enforcement rules under the acts. This article reviews Republic of Ko rea’s approach to interpretation and application of treaties in its domestic court
system, and issues and challenges raised by stakeholders.
Table Of Contents
I. Introduction
II. The Domestic Effect of the International Treaties in Korea
III. Korean Courts’ Position on the Interpretation and Application of
International Treaties
A. Impacts of the International Treaties on the Interpretation of Domestic Law
1. The Legal Status of Trade Agreement
2. The Legal Status of Human Rights Treaty
B. Direct Effect of the International Treaties
1. Direct Effect of Trade Agreement
2. Direct Effect of Human Rights Treaty
C. Indirect Interpretation and Application of Trade Agreement
IV. Conclusion
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