한미FTA와 국가책임 : ISD에서의 간접수용과 그 헌법문제를 중심으로 = Constitutional Analysis on the Expropriation Clause of the KORUS FTA

다국어 초록 (Multilingual Abstract)

This paper tries to test constitutionality of the expropriation clause of the KORUS FTA, which is designed to be exercised via so called investor-state dispute settlement (ISD) system according to the Chapter 11 of that FTA. Since the ISD was combined with FTA, where the first one is the NAFTA, it has construed one of the most powerful mechanism to enforce obligatory provisions of investment agreements and to protect transnational capitals. But, such system cannot be compatible with the principle of national sovereignty, so that many challenges to such ISD has been made worldwide. This paper stands on such promise that the ISD shall be held invalid under Korean Constitutional system.
The expropriation clause of the KORUS FTA is another example of unconstitutionality of the KORUS FTA. That clause has two kinds of expropriation: direct and indirect. The first one requires the state to compensate any losses caused by state's taking of properties or titles even if there is no laws on that compensation. But Korean legal system does not have such kind of expropriation and compensation: according to Korean Constitutional Court, any law which empowers state to take properties or titles but has no clause on compensation for that taking, shall be held unconstitutional to be invalid. There can, accordingly, be no compensation when there is no compensation clause. In other words, no law, no compensation, and no compensation, no taking in Korean Legal system.
The later one, indirect expropriation, pauses so much serious constitutional problems. Korean legal system does not know such kind of expropriation. The Constitutional Court and the Supreme Court has continuously denied such one. Moreover, 'regulatory expropriation', which is typical one of the indirect expropriation, can not be conducted as a kind of expropriation, because Korean Constitution has mandated so many regulatory powers on private properties to the state. Under the constitutional orientations toward so called Sozialstaat, Korean government should implement several constitutional obiligations and mandates, if necessary, at the 'sacrifices' of private properties. Korean Constitution has made such sacrifies not as 'takings' but as 'internal limitation of the property rights'.
Surely this paper is written from a kind of partisan perspective against KORUS FTA. But such political bias can be legitimated when the ideal of Korean constitutionalism toward human rights and social justice is taken into account: state's interventions into civils society and economic market for balanced and equitable development of economy and democratization of the Korean economy shall be one of the major constitutional missions. It is at this point, that the expropriation clause of the KORUS FTA can be held unconstitutional.

목차 (Table of Contents)

• 1. 서론
• 2. 투자자-국가제소제
• 2.1. 투자자-국가제소제의 의미와 출범
• 2.2. 투자자-국가'직접'제소제
• 2.3. 수정형태: BIT2004와 한미FTA의 경우
• 2.4. 소결
• 3. 투자자-국가제소제와 간접수용
• 3.1. 서언
• 3.2. FTA 상의 수용관련규정
• 3.3. 직접수용과 보상: 그 위헌성
• 3.4. 간접수용: 그 위헌성
• 4. 결론