S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 46, Number 1/4 (2005)
경제행정의 세계화-행정의 통제규범으로서 WTO협정? -대법원 2005.9.7. 선고, 2004추10 판결의 평석을 겸하여- : Globalization of National Economic Regulation -WTO-Norm as criterion in the Control of Bureaucracy?-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.46 No.4, pp. 312-348
- In our age of globalization, the World Trade Organization (WTO) exercises
extensive powers over national economic regulation policy, both implicitly and
explicitly. However, there have been few legal analyses of the constitutional
legitimacy of its harmonization process in Korea. This article analyses the
legitimacy issues from the viewpoint of the rule of law(Rechtsstaat) and the
principle of democracy in the Korean constitutional and administrative law and
reviews the compatibility of WTO-order with the national public interest related
to economic regulation.
Recently, the Supreme Court handed down a ruling repealing the Junlabuk-do
provincial assembly's ordinance, which sanctioned the preferential use of domestic
products in school cafeterias. This ruling is used in this article as a case study
to show how far WTO-norm can influence national regulation decision and how
the compliance with the WTO-norm could be misconstrued in several respects.
The court stated that the ordinance violated the governing principle of the GATT
1994 Article III (national treatment), but the court did not explain whether and
how it permitted the judicial enforceability of WTO agreements in the national
order. This article criticizes the courts decision, because it did not consider the
nature of the WTO-norm in relation to the principles of reciprocity and the
attitude of the Korean Congress, which did not declare that the WTO-norm was
directly applicable to the country.
It cannot be denied, on the other hand, that the government needs to keep...