KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Background and purpose

▶Establishment of interpretation standards for Inter-Korean Exchange and Cooperation Act and reinforcement of the rule of law

○The status of the fundamental law that legally supports inter-Korean private exchange and cooperation

-「Inter-Korean Exchange and Cooperation Act」is a law enacted to give legitimacy to human and material exchanges between South and North Korea and to set matters necessary for related procedures. Since its enactment in 1990, it has been in the status of the fundamental law in the field of exchange and cooperation between North and South Korean residents (including corporations and local governments) for over 30 years. There is a significance of legislation in that it recognized North Korea as a counterpart to exchange and cooperation and legally supported private exchanges and cooperation

○Critical viewpoints in the application of specific interpretations

-Critical viewpoints have been raised regarding which civilian activities of the two Koreas should fall within the scope of this Act, somewhat abstract criteria for approval of visits to North Korea or the export/import of goods and the exercise of the government's broad discretionary power

-The question of whether a regulatory-oriented legal system is appropriate will be raised continuously in the reality that inter-Korean relations deepen and the aspects of exchange and cooperation are increasing in breadth and depth

○Need to establish standards for interpretation of the Act and to strengthen the rule of law

-Strengthening the rule of law in inter-Korean relations not only improves the predictability of offenders, but also improves the sustainability of exchange and cooperation and acts as a steppingstone for mutual trust

-There is a need to strengthen the rule of law in inter-Korean relations by organizing application examples and rulings of the Inter-Korean Exchange and Cooperation Act and preparing more reasonable interpretation standards, and to create a stable and future-oriented space for inter-Korean exchange and cooperation by enhancing the sustainability of exchange and cooperation and furthermore, resilience

 

Ⅱ. Main contents

▶Comprehensive summary of interpretation and application examples by clause of the Inter-Korean Exchange and Cooperation Act

○Presentation of reasonable interpretation standards through the review of interpretation and application examples

-Utilized accumulated precedents and decisions, interpretation and application examples, academic literature, and further major issues surrounding the interpretation of the Act, and movements to enact and amend the Act as basic data for establishing rational interpretation standards in relation to the Inter-Korean Exchange and Cooperation Act

-Provisions for each article, purpose and history of legislation, commentary on provisions, examples, and evaluations were prepared in the order. For the part where clear interpretation criteria or a unified evaluation opinion could not be derived, various opinions and application examples were summarized as much as possible and various opinions were presented

-Introduced the reform and opening process of a socialist country by explaining the process of reform and opening up and exchange and cooperation in Vietnam and examining and organizing major cases

▶Issues by field of exchange and cooperation

○Confirmation of the need to improve the regulation-centered legal system in human exchange

-With the natural increase of inter-Korean traffic and resident contact over the past 30 years, the demand for deregulation to protect the interests of South Koreans and promote exchange increased

-Identified issues such as the fact that the current Act alone cannot cover all aspects of the changing society as the means of trade and contact are diversified due to the development of science and technology and Internet communication, and that enforcement of current regulatory-focused Act for the promotion of human exchange is undesirable

-In response to the argument that the existing positive method should be relaxed to a negative method in order to promote smooth exchange, cooperation and human exchange, the Minister of Unification's exercise of discretionary powers should be carried out in a way that does not go against the legislative purpose of the Inter-Korean Exchange and Cooperation Act, which is to promote smooth exchange and cooperation between the two Koreas, and there is a need to consider ways to gradually allow the movement of residents of the two Koreas in the process of improving inter-Korean relations and moving toward a peaceful community in the future

○Problem of excessive delegation of material exchange (trade) and the need to consider the specificity

-Inter-Korean Exchange and Cooperation Act grants a wide range of legislative powers to subordinate statutes while subdividing trade-related regulations into various enforcement ordinances and announcements

-Criticism that the “External Cooperation Act” is applied without considering the special relationship between the two Koreas, and that the voices of the field are not reflected in the law enforcement standards

-In case of violating the Inter-Korean Exchange and Cooperation Act in the course of trade, there is a need to improve the legislation, such as the possibility of being linked to the 「National Security Act」depending on the case, and excessive punishment regulations, which act as a barrier to entry for trade parties and organizations wishing to trade

○Need to enhance the sustainability of cooperative projects and secure remedies

-In case projects or activities are suspended for reasons other than cooperative projects, it is necessary to seek a legislative solution to overcome the difficult reality of providing legal relief for inter-Korean economic cooperation operators

-Need to clearly establish legal measures, standards and procedures for cooperative projects in consideration of the legislative purpose of “facilitating inter-Korean exchanges and cooperation and contributing to peace and unification of the Korean Peninsula”

-Recognition of the need to limit to those who have received subsidies or other necessary support for the guidance and supervision of cooperative projects, and clarify the scope of the investigation on the project operation situation

 

Ⅲ. Expected effects

▶Academic contribution

○Presents major application cases and issues related to the Inter-Korean Exchange and Cooperation Act in a concise way, and intensifies discussions on legal research by examining the legislative purpose and history of each article of the Inter-Korean Exchange and Cooperation Act, explaining the provisions, and summarizing related cases

○It is possible to discover application cases that do not remain in the literature other than court precedents or administrative dispositions, and at the same time add hypothetical cases, and use them as basic data for diagnosing current Act and legislative research

○Contribute to research on strengthening the rule of law in the field of exchange and cooperation by comparing the principles of transparency in procedures, consistency of interpretation standards, and protection of people’s rights, which are the general interpretation standards of the rule of law administration, with the interpretation and application of reality

▶Policy contribution

○Share problem awareness with working experts who participate or are involved in exchanges and cooperation, and maintain a critical perspective on law interpretation standards and application examples

○It is expected to serve as a reference material for exchange and cooperation parties and practitioners of related administrative agencies, and furthermore, as a reference for future legislation by presenting the future-oriented development direction and rational interpretation standards of the Inter-Korean Exchange and Cooperation Act

○It is fundamental research that can be extended to other laws such as the Inter-Korean Cooperation Fund Act and the Inter-Korean Relations Development Act in addition to the Inter-Korean Exchange and Cooperation Act, and can be produced and used as a popular book for the general public