違憲條約의 效力과 司法審査 = Validity of Unconstitutional Treaty and Judicial Review

다국어 초록 (Multilingual Abstract)

Any discussion of the relationship between international Law and municipal Law must itself with two main problems.
First, there is the theoretical question of whether international Law and municipal Law are part of a universal legal order(monism), or form two distinct systems of Law(dualism).
Secondly, a court may be faced with the practical difficulty of reaching a decision where there exists a conflict between the rules of international Law and the rules of municipal Law relevant to the particular sitution.
The object of the present discussion is to ascertain in what manner and to what extent municipal courts do apply a rule of international Law.
A further question is, how far a rule of municipal Law will be applied by a municipal court if is a ctually conflicts with a rule of municipal Law judge-made statutory rule.
The answers to these questions will be found to require distinctions to be made, on the one hand, between customary and treaty rules of international Law; and on the other between statutory and judge-made municipal Law.
Based on this premise, this study atempts to clarify the relationship between treaties and constitution focused on the formality of concluding treaties and the effect.
Common throughout the constutional provisions and constitutional traditions of various nation is their recognition of the national validity of treaties.
Conflicts between treaties and constitutional involve both discrepancies in contents and conclusion procedures that run counter to the constiution.
The constitutional system of modern states seeks to achieve harmony in contents between the two statutroy entities under the principle of public Law unity.
In practice, too, the two statutroy entities are being adjusted to another from the viewpoint of respecting treaties and increasing trends twoard internationalism.

목차 (Table of Contents)

• Ⅰ. 序言
• Ⅱ. 內容的 違憲條約의 效力
• 1. 二元論
• 2. 一元論
• 3. 結論
• Ⅲ. 形式的 違憲條約의 效力
• 1. 國內法的 效力
• 2. 國際法的 效力
• Ⅳ. 行政協定의 國內的 效力問題
• Ⅴ. 條約의 違憲審査
• 1. 條約의 違憲審査 可能性
• 2. 違憲條約의 審査機關
• Ⅵ. 結言