조약(條約)의 위반(違反)과 종료(終了)에 관한 연구

유재형 ( Jae Hyeong Yoo ) 청주대학교 법학연구소 2003 法學論集 Vol.20 No.-

Breach of a bilateral treaty by one of the parties does not ipso facto put an end to the treaty, but only(apart from any questions of international responsbility which arise) entitles the other party to invoke the breach as a ground for terminating the treaty or suspending its operation. This has been accepted as customary international law where the breach is a material breach, or breach of an essential provision of the treaty; however, the matter is less certain in respect of other kinds of breach. Those maintaining that any breach creates a right for the other party to cancel the treaty maintain that it is not always possible to distinguish essential from nonessential provisions, that the binding force of a treaty protects nonessential as well as essential provisions, and that it is for the injured party to consider for itself whether violation of a treaty, even in its less essential parts, justifies its cancellation. The Vienna Convention(Article60) provides that it is only a material breach of a bilateral treaty by one of the parties which entitles the other to invoke the breach as aground for terminating the treaty or suspending its operation in whole or in part. A "material" breach is defined as "a repudiation of the treaty not sanctioned by the Convention, or the violation of a provision essential to the accomplishment of the object or purpose of the treaty"(Article 60.3). A party may lose its right to invoke the breach if, after becoming aware of the facts, it expressly agrees that the treaty remains in force or continues in operation, or must by reason of its conduct be considered to have acquiesced in the maintenance in force or in operation of the treaty(Article 45). In the case of a material breach of a multilateral treaty the situation is more complicated. Since several states will be parties to the treaty, but not all of them will be affected by the breach in any but the most general way, a right to terminate the treaty needs to be carefully limited. Article 60.2 of the Vienna Convention provides for termination of the treaty only when the parties(other than the defaulting state) unanimously so agree; they may agree to terminate it in the relations between themselves and the defaulting state(which has much the effect of expelling the defaulting state from participation), or as between all the parties. Otherwise the remedy is by exercise of the right to suspend the operation of the treaty in whole or in part. The Vienna Convention goes on to provide that the first three paragraphs of Article 60(ie those so far mentioned) do not apply in certain circumstances. First, of course, they are without prejudice to any provision in the treaty applicable in the event of a breach. Second, they do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. In conclusion, as long as the peaceful resolution between the intended partise is primary obligation (Article 65. 2·3), it is not possible to go ahead, in regard to the relief of the party in good faith resulting from the breach, beyond that of termination or suspension of the operation of a treaty regarding "material breach" as defined by the Article 60 of the above mentioned convention, given the current situation. Accordingly, procedure must be clarified, and misuse of power in operation should be prevented in this case.

ICJ의 권고적(勸告的) 의견에 관한 일고찰(一考察)

유재형 ( Jae Hyeong Yoo ) 청주대학교 법학연구소 2005 法學論集 Vol.25 No.-

An advisory opinion is the judicial opinion of a standing international tribunal on a legal question whether or not related to an existing international dispute referred to the tribunal by an international entity. The opinion does not bind the requesting entity, nor any other body nor any State, to take any specific action; in general there may be at most an obligation on the requesting entity to regulate its conduct on the basis that the view of the regal situation expressed in the opinion is correct. This essay is an overview in the viewpoint of the advisory opinions of the ICJ conferred with binding force. It analyzes the expectations and alienation of the functions of advisory opinions in the process of erecting and abolishing the regulation of conferred binding force to see the international relations towards the advisory opinion. Many see that the disputes arisen in the international organization originate in the confrontation of the nations, but it can also include more specialized disputes as the function of the international organization expands. In a way to resolve the disputes in peaceful way, an article is erected in the multilateral treaty to advocate the advisory opinion in more positive view while such article is found to be more diversified and specialized in quoting. Additionally, discussion over the contents and the effect of the conferred advisory opinion is becoming more and more complex. In a process of increasing the role of the international organization, solving disputes through the article which gives the binding force to the advisory opinion is requesting the ICJ to play more roles in the international relations. On the other side, it can also limit the role of ICJ in the growing function of the international organization. When discussing over the growing role of the ICJ, it can be said that it`s vital to fully comprehend the function of ICJ in the real world as well as reviewing the role of ICJ in the near future.

무력충돌법상 민간인의 보호

유재형(Yoo Jae-Hyeong) 강원대학교 비교법학연구소 2011 江原法學 Vol.32 No.-

무력충돌법과 환경보호

유재형(Yoo, Jae-Hyeong) 강원대학교 비교법학연구소 2013 江原法學 Vol.38 No.-

무력충돌법의 역사를 볼 때, 그 발전에 지대한 공헌을 한 조약들은 구체적인 전쟁의 비참한 체험을 겪은 인도적 의식의 고양과 이것을 體現하려는 국제적인 여론의 힘에 의하여 실현되었음을 알 수 있다. 이렇게 볼 때, 환경보호에 관하여도 무력충돌법의 발전을 견인할 수 있는 가장 확실한 힘, 또한 국제여론이라 생각된다. 그리하여 Falk도 국제법은 그 유효성을 대부분 국제적인 기준의 내면화와 자발적인 수락, 나아가 이것들의 여론에 의한 뒷받침에 의존하고 있으므로 그 입법과정에 환경 NGOs 기타 시민사회 그룹이 참가하는 것이 중요한 바, 시민사회의 역할은 또한 軍과 산업체가 함께 구축하여 장해를 극복할 수 있을 것이라고 한다. 오스트리아의 외교관인 Turk가 무력충돌법의 발전을 목적으로 과거의 노력이 곤란했던 것은 일부 국가의 정부가 軍部의 압력에 굴복하여 이에 소극적이었기 때문이지만 무력충돌이 민간인과 환경에 미치는 비참한 영향에 대한 여론의 민감성은 경시할 수 없으며 정책 결정자의 임무는 여론의 광범한 지지를 획득하는데 있다고 한다. 이 점의 成功例로서 그는 對人地雷禁止協約을 드는데 여기에 集束彈協約을 추가할 수 있을 것이다. 마찬가지로 현행법의 해석 및 적용에 대하여도 언급하고자 한다. 예컨대, 전술한 균형성의 원칙을 적용함에 있어서 균형성에 대하여 가치판단을 하는 것은 우선은 공격에 종사하는 戰線의 지휘관이지만, 戰時에 軍의 분위기는 압도적으로 애국주의와 승리에 대한 충동에 의하여 지배되어 여기에 환경보호를 포함한 인도적인 고려는 거의 기대하기가 어렵다. 그러나, 균형성의 판단에 있어서 고려해야 할 환경가치를 담당하는 것은 역시 ‘세계의 인민’이다. 요컨대, 균형성의 원칙이 무력충돌에서 환경보호를 위하여 작동할 수 있는가의 여부는 이 양자의 力學關係에 달려 있다고 하지 않을 수 없다. 평시든 전시든, 환경보호가 인류의 생존을 위하여 불가결한 조건이라는 점은 再言을 요치 아니한다. 그러나, 급진적인 입법작업에 착수하기 보다는 무력충돌에서 적용될 수 있는 국제관습법규를 확인하는 작업과 병행하여 관련되는 기존의 제조약들을 실효적으로 운용하는 방책을 찾아내는 것이 보다 현실적인 접근방법일 것으로 생각된다.

국제환경법(國際環境法)의 입법상(立法上) 문제점(問題點)에 관한 연구

유재형 ( Jae Hyeong Yoo ) 청주대학교 법학연구소 2004 法學論集 Vol.21 No.-

Environmental protection is a matter of both the acceptability and survival of our social system. The only acceptable social system is one which generates enough employment for all its citizens without burdening the environment so much that it is destroyed for future generations. Thus, environmental protection is also a matter of the protection of posterity(inter-generational equity): Less than optional management of resources creates a danger that the needs of the present generation will be met at the risk of depriving future generations of the ability to meet their own needs. International environmental law must therefore not be limited to issues surrounding the economic distribution of natural resources; it must first and foremost be concerned with the optional management of resources. These days, major interest in international environmental laws has no way but to be focused on the ways to secure observation of the laws rather than creating new treaty. Problem is, however, as to why this phenomenon is occurring. Namely, main theme of this study is that we have to study first than anything else on the reasons for such phenomena from legislation point of view. In summary problems in legislation are categorized in the following four areas: ① Problems in the type of agreement between multiple nations and its function, ② General obligatioed in the treaty and the problems related to subjective judgments of the nations concerned, ③ Adjustment on the economic sovereignty of the nations concerned, and ④ Ways to make the nations which did not participate in the treaty observe pertinent treaty. In conclusion, the roles of sovereign states are enormous even in the area of protection of global environment. Accordingly, it will be meaningless as long as the contents do not acknowledge right positions to the role of sovereign states. Therefore, it will be necessary for international organizations related to environment to arbitrate and adjust the policies and legislative systems of each sovereign state and at the same time to solve the problems in question, that is to say, while trying to promote the legislation of International laws, the effective observation of the laws should be guaranteed.

국제형사재판소(ICC)의 역할과 과제

유재형(Yoo Jae-Hyeong) 동아대학교 법학연구소 2008 東亞法學 Vol.- No.42

The purpose of this research is to figure out what the main role of ICC, which was established in Jul 1<SUP>st</SUP> 2002, is and what problems ICC has currently. The main purpose of ICC is to guarantee international humanitarian order, which can contribute to international peace in 21<SUP>st</SUP> century, as it punishes individual who violates international humanitarian law. Considering the purpose, this research tried to analyze historical background of ICC establishment from the aspect o f construction of international humanitarian law. After that, it analyzed the structure and the nature of ICC, which is designed to conduct given role, based on Rome Statute in order to deduct following problems which ICC is facing currently. (1) Resistance of strong countries and necessity of cooperation (2) The problem of ‘self-referral’ (3) The problem of magnificent cost required for labor and administration (4) The problems concerning the crime of aggression (5) The problem of ‘double standard’ for human rights In conclusion, the establishment of ICC is a historically meaningful event as it sets up principles of judging individual’s behavior as an international crime for the first time in the history of international law, and as it indicates establishment of permanent court which is equipped with substantial organization and process. ICC is expected to play a significant role to maintain international peace and security, which are deemed to be the most important principles in international law. However, it is required to make global efforts to solve given problems for ICC to realize its aforementioned principles effectively.

현대국제법상(現代國際法上) 공평원칙(公平原則)의 의의(意義)와 타당성(妥當性)

유재형 ( Jae Hyeong Yoo ) 청주대학교 법학과 2009 法學論集 Vol.31 No.2

집단적자위권

유재형(Yoo, Jae Hyeong) 강원대학교 비교법학연구소 2014 江原法學 Vol.43 No.-

건설장비 주행시험로 설계

유재형(Jae-Hyeong Yoo),김경환(Kyung-Hwan Kim),전홍규(Hong-Gyu Jeon) 한국자동차공학회 2016 한국자동차공학회 학술대회 및 전시회 Vol.2016 No.11

조약(條約)의 해석(解釋)에 관한 일고찰(一考察)

유재형 ( Jae Hyeong Yoo ) 청주대학교 법학연구소 2004 法學論集 Vol.21 No.-

The purpose of interpreting a treaty is to establish the meaning of the text which the parties must be taken to have intended it to bear in relation to the circumstances with reference to which the question of interpretation has arisen. Principle of simultaneity means a principle which stipulates that "the Wording of Treaty shall be interpreted in the light of the rules of general international laws effective at the time of entering into treaty and also in accordance with the meaning of the contemporary terminology". This principle is basic principle of contract in the context of domestic laws. However, important thing is that this principle is also applied to the interpretation of international treaty. Even though the scope of this principle is applicable only to the study on the rules of interpretation of treaty, theory of inter-temporal law can be classified into the rules of simultaneity and other rules. International laws have been often classified into treaty between different countries, multinational treaty, open treaty, and closed treaty, etc. However, we can see that it is possible to classify into treaties where principle of simultaneity is applied and the other opposite cases as a study on the theory of inter-temporal law as well as on the other principle of interpretation besides this classification.