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Application of international law in Korean courts

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Frame of Image e application of international law in Korean courts.
* Professor, Ph.D., College of Law, Korea University. The author would like to thank Mr. Sherzod Shadikhodjaev (Ph.D. Candidate at Korea University) for his research assistance in the course of the preparation of this paper. ※ The English translation of the excerpts from all Korean sources cited in this paper is designed exclusively for the purposes of the present work, and without prejudice to their original (Korean) version. 45
46
Asia Law Review
[Vol. 1 : 45∼67
The author infers from the Korean Constitution and relevant judgments that international customs and treaties share an equal status with domestic laws of Korea. The observations in this paper suggest that Korean courts try to interpret domestic laws in a fashion that ensures compliance with international law. In one case the Constitutional Court acknowledged the supremacy of international law over municipal law. It is believed, however, that such supremacy has not gained a firm support in Korea. By admitting the direct applicability of particular treaty provisions in national legal system, the Constitutional Court opens a debate on the question of their direct domestic effect. From the author’s view, Korean courts have generally applied international law with good perception of its main concepts. Nonetheless, they still appear to lack correct understanding of the relationship between customary law and treaties. This may be due to the fact that the Korean bar exami


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Title Application of international law in Korean courts
Similar Titles
Material Type Articles
Author(English)

Park, Nohyoung

Publisher

[Seoul]:Korea Legislation Research Institute

Date 2004-12
Journal Title; Vol./Issue Asia Law Review:vol. 1
Pages 24
Subject Country South Korea(Asia and Pacific)
Language English
File Type Documents
Original Format pdf
Subject Government and Law < Laws and Legislation
Holding KLRI

Abstract

This paper examines Korean judicial practice involving international law. For this purpose, it first aims to determine international law status in the legal order of Korea. Then it discusses specific aspects of the application of international law in Korean courts. The author infers from the Korean Constitution and relevant judgments that international customs and treaties share an equal status with domestic laws of Korea. The observations in this paper suggest that Korean courts try to interpret domestic laws in a fashion that ensures compliance with international law. In one case the Constitutional Court acknowledged the supremacy of international law over municipal law. It is believed, however, that such supremacy has not gained a firm support in Korea. By admitting the direct applicability of particular treaty provisions in national legal system, the Constitutional Court opens a debate on the question of their direct domestic effect. (the rest omitted)