南北韓 統一條約의 締結에 關한 硏究 = (A) Study on the Conclusion of the Unification Treaty between the South and the North Korea

다국어 초록 (Multilingual Abstract)

How to combine "peace" and "unification" is Korea's most prioritised task. We have to maximise what's in common in the two different unification schemes - South Korea's "the Korean Commonwealth" and North Korea's "Koryo Federation" in a wisest way. We also need to minimise the difference of the two schemes and to expedite the eternal peace and unification in Korea There is only one nation - Korean nation above the two divided South and North.
However, neither the Korean Commonwealth scheme nor the Koryo Federation scheme does not have any concrete mentioning about the actual conclusion process of a unification treaty which leads to a unified state. Although the South and the North agree to conclude a unification treaty with any of the three options (i.e. a. to take up only one scheme from any of the two; b. to reach a compromised scheme; or c. to come up with a totally new scheme), so far no concrete procedure on how to conclude the unification treaty has been clarified yet. The major purpose of this study is to complement this defecting part in the methods currently discussed for Korean unification.
To accomplish the above research purpose, the following chapters are focusing on the specific aspects regarding the conclusion of the unification treaty between the South and the North Korea : Chapter 2, "The Necessity of concluding an unification treaty between the South and the North Korea", discussed why it is necessary to conclude an unification treaty between the South and the North Korea describing the internal and external necessities on unification schemes. Chapter 3, "Case Study on Germany's Unification Treaty", examines the German experience on their conclusion of the Unification Treaty and take a lesson to be applied in the conclusion of the unification treaty between the South and the North Korea. Chapter 4, "The International Legal Status and situations of the South and the North Korea", looks into whether the South Korea and the North Korea are on the status of a state in terms of international law. It also discusses whether the South Korea and the North Korea have legal capacity to conclude a unification treaty. Chapter 5, "The Abilities of the South Korea and the North Korea to Conclude an Unification Treaty and its procedure", checks up the legal capacities of the South Korea and the North Korea to conclude an unification treaty in terms of international and municipal law. It also covers the detailed procedure of concluding a unification treaty based on international and each parties' national laws. Chapter 6, "The Contents of the Unification Treaty between the South and the North Korea", tries to draft a title of the unification treaty, its text and detailed articles as well, based on the issues discussed in Chapter 5. Chapter 7, "The Unification Treaty between the South and the North Korea and the Succession of the Treaties", examines whether the treaties the South and the North concluded with third parties before the conclusion of an Unification Treaty between the South and the North Korea may be succeeded to the unified Korea. It also discussed the same with the existing inter-Korean treaties. To do this, two different succession cases - "succession of states" and "succession of treaties" are briefly reviewed. A comparative analysis on German experience of the succession of treaties follows to show us a way to treaty succession between the South and North Korea. Chapter 8, as a "Conclusion" summarizes the above study and puts up several recommendation to the government authority.
The basis of this study is the principle of national self-determination with the Republic of Korea's national sovereignty and our Korean nation's awareness of national independency. This implies that the current situation of division in Korea has been forced by foreign powers and that the neighboring superpowers are keeping very inactive stands towards Korean unification. The national self-determination has been stipulated in Article 1 Paragraph 2 of the Chapter of the United Nation's as one of UN's purpose.
This study is on the basis of positive legal theory assuming the substance of the law is not natural law assuming utopia , but existing positive law in the actual world. This stems from the fact that the unification ta나 are rather more relevant to the requests of the real world not to the ideal world. Also this study is mainly taking "theoretical approach" based on the precedent academic researches as well as partly taking "positive approach" based on official documents at working-level. In terms of logical methodology, this study is taking real law of interpretation approach and law making approach at the same time. The conclusion is a result of law-making research, but obviously this is through a positive law of interpretation approach. And it needs to be mentioned that this s셔요 has been done a priori.
This study has the main conclusions as follows:
1. The necessity to conclude an Unification treaty between the South and the North Korea is fully acknowledged. But currently neither the Korean Commonwealth scheme nor the Koryo Federation scheme does not show in a very detailed way how to conclude an unification treaty to form an unified state. But it seems that an conclusion of unification treaty is obviously necessary at a certain stage both in the Korean Commonwealth scheme and the Koryo Federation.
2. The legal status of both the South Korea and the North Korea is "Subject of International Law". The legal situation between the South and the North is wartime. This means that the legal status of the South Korea and the North Korea are subject to be very relative. As long as the South Korea doesn't recognise the North Korea as a state, the North Korea is not on the status of a state when it comes to the relationship with the South Korea. The legal situation of the South Korea and the North Korea is wartime since July 27, 1953 because no peace treaty has been agreed after the armistice. The South Korea and the North Korea are not in a peacetime situation.
3. Both the South Korea and the North Korea are able to conclude an unification treaty between the South and the North Korea. The actual procedure for the unification treaty is as same as general procedures for any treaties. From the South Korean point of view, the South Korea has the capacity to conclude an unification treaty. And the North Korea is able to conclude an unification treaty as a belligerency to the South Korea before the conclusion of the peace treaty, also as an insurgency after the conclusion of the inter-Korean peace treaty. The same goes for North Korea. From the North Korean point of view, North Korea is entitled to conclude a unification treaty, and South Korea is able to conclude a unification treaty as a belligerency to North Korea before the peace treaty, also as an insurgency after the inter-Korean peace treaty. The international legal procedures for conclusion of an inter-Korean unification policy is generally same with other treaty conclusion, i.e. negotiation, signature, ratification, and exchange of the ratification instrument. Also concerning the municipal law and regulations, the South and the North should follow its own internal constitutional regulations.
4. The contents of an unification treaty between the South and the North Korea will be decided through the agreement between the South Korea and the North Korea. The conclusion of an unification treaty between the South and the North Korea will be done by the political decisions of making power of the unification treaty in the South Korea and the North Korea. So its actual contents will be also decided by the intention of making power of the unification treaty in the South and the North. There are affecting the contents of the treaty; 1) whether the unification will be an annexation or an amalgamation, 2) whether the inter-Korean agreement will be a unification treaty or a unification constitution .
5. The difference between the annexation and the amalgamation will lead to the different results in the succession of the treaties between the unified Korea and the South Korea as well as between the unified Korea and the North Korea. Also the succession of the treaties procedure between unified Korea and the concerned parties of the treaty will be affected by the same difference. As far as Korean unification is concerned, if the South and the North would follow the amalgamation, Article11 and Article 12 of German Unification Treaty will be a helpful reference to the unification treaty between the South and the North Korea. In addition, regarding the succession of the treaties procedure, a provision to go on in the unification treaty between the South and the North Korea by which the unified Korea agrees with the concerned parties might be the most reasonable solution.
As a conclusion, it is stressed that we need to draft an unification treaty between the South and the North Korea while preparing Korean unification. But while doing this, two new issues will be raised: 1) If an unification treaty between the South and the North Korea is concluded before the conclusion of inter-Korean peace treaty, whether the effectiveness of the truce is still valid on the relationships with China and the United Nations, 2) How to avoid an ideological conflict occurring between an unification treaty between the South and the North Korea based on Korean's national self-determination and the remarkably internationalised environment of Korea's National Security.
Finally, the following two recommendations are put forward for the Korean re-unification: 1) A realistic way for Korean unification should be worked out through maximising what's common in the Korean Commonwealth scheme and the Koryo Federation scheme. 2) Draft contents of an unification treaty between the South and the North Korea should be drawn up. For this, various surveys and professional opinions should be appropriately channeled to the planners and decision-makers of unification policy to work on a national consensus and the nation's self-determination.

목차 (Table of Contents)

• 목차
• 第1章 序論=1
• 第1節 硏究의 目的=1
• 第2節 硏究의 範圍=4
• 第3節 硏究의 方法=6
• 第2章 南北韓 統一條約 締結의 必要性=7
• 第1節 序說=7
• 第2節 統一方案의 內在的 必要性=8
• I. 한민족共同體 統一方案上 必要性=9
• II. 高麗聯邦制 統一方案上 必要性=18
• 第3節 統一方案의 外在的 必要性=25
• I. 北韓崩壞時의 必要性=26
• II. 武力統一時의 必要性=31
• 第4節 結言=37
• 第3章 東西獨 統一條約의 先例=40
• 第1節 序說=40
• 第2節 東西獨 統一條約의 締結過程=41
• I. 東獨의 平和革命=41
• II. 第1 國家條約=42
• III. 第2 國家條約=44
• IV. 2+4 會談=45
• 第3節 東西獨의 法的 地位와 狀態=46
• I. 東西獨의 法的 地位=46
• II. 東西獨의 法的 狀態=48
• 第4節 東西獨의 統一條約 締結能力과 締結節次=49
• I. 東西獨의 統一條約 締結能力=49
• II. 東西獨의 統一條約 締結節次=50
• 第5節 東西獨 統一條約의 內容=53
• I. 條約의 構成=53
• II. 條約의 內容=53
• 第6節 結言=62
• 第4章 南韓과 北韓의 國際法上 地位와 狀態=64
• 第1節 序說=64
• 第2節 南韓과 北韓의 法的 地位=65
• I. 國際法上 地位=65
• II. 國內法上 地位=74
• 第3節 南韓과 北韓의 法的 狀態=77
• I. 國際法上 狀態=77
• II. 國內法上 狀態=82
• 第4節 結言=84
• 第5章 南韓과 北韓의 統一條約締結能力과 締結節次=85
• 第1節 序說=85
• 第2節 南韓과 北韓의 統一條約締結能力=86
• I. 國際法上 統一條約締結能力=86
• II. 國內法上 統一條約締結能力=90
• 第3節 南韓과 北韓의 統一條約締結節次=92
• I. 國際法上 統一條約締結節次=92
• II. 國內法上 統一條約締結 節次=98
• 第4節 結言=101
• 第6章 南北韓 統一條約의 內容=103
• 第1節 序說=103
• 第2節 統一條約의 名稱과 前文=105
• I. 統一條約의 名稱=105
• II. 統一條約의 前文=107
• 第3節 統一條約의 細部 內容=111
• I. 國號와 首都=111
• II. 國土와 國旗·國歌=115
• III. 國家의 形成과 憲法의 制定=119
• IV. 國家의 形態와 中立性=124
• V. 過渡期의 設定과 過渡機構의 設置=126
• VI. 法令의 效力과 條約의 效力=132
• VII. 公共施設의 移讓과 公共行政行爲의 效力=137
• VIII. 裁判의 效力과 復權=140
• IX. 財産權의 回復=142
• 第4節 結言=146
• 第7章 南北韓 統一條約과 條約承繼=148
• 第1節 序說=148
• 第2節 國際法上 國家承繼와 條約承繼의 一般的 考察=149
• I. 國家承繼=149
• II. 條約承繼=154
• 第3節 東西獨 統一條約과 條約承繼=165
• I. 問題의 困難性=165
• II. 東西獨의 條約承繼=168
• 第4節 南北韓 統一條約과 條約承繼=174
• I. 問題의 困難性=174
• II. 南北韓의 條約承繼 方案=176
• 第5節 結言=179
• 第8章 結論=182
• 參考文獻=187
• ABSTRACT=196