경제행정의 세계화-행정의 통제규범으로서 WTO협정? -대법원 2005.9.7. 선고, 2004추10 판결의 평석을 겸하여-

Abstract

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...