INTERNATIONAL LAW IN NORTH EAST ASIA FORUM (ILNEAF)

ILNEAF - National Decisions involving questions of International Law: Korea

Korean National Court Cases (February 8, 2017)

 

Korea’s Domestic Legal System regarding International Law: Article 6 of the Constitution of the Republic of Korea

(1) Treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea.

(2) The status of aliens shall be guaranteed as prescribed by international law and treaties.

>Constitutional Court Cases: The constitutional court was established in 1988. Later, the first constitutional court case was decided in 1989.

                                             

Cases involving the International Law[1]

 

Court

Decision date

Case No.

Related Int’l Law

Summary of the case regarding int’l Law

Decision regarding Int’l Law[]

1

Constitutional Court

1991.7.22

89HunGa106

Universal Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights (Art. 4, Art. 8.1); International Covenants on Civil and Political Rights (Art. 22); Recommendation concerning the Status of Teachers by the UNESCO and the ILO.

Claimant who has participated in the teachers’ union activities was dismissed due to the Korea’s Private School Act which prohibits teachers from the labor union activities. Claimant insists that the Korean Law is inconsistent with the international legal obligations.

The UDHR and the Recommendation are not legally binding. Since ICESC and ICCPR stated the principle of Statutory Reservation, the government can limit the worker’s right of participating in the labor union in accordance with the domestic law. Thus, Korea’s private school act is constitutional.

 

Constitutional Court

1996.10.4

95HunGa2[3]

Customary international law regarding the recognition of State (North Korea).

Republic of Korea (Korea) and the Democratic People’s Republic of Korea (North Korea) simultaneously joined the United Nations (U.N.) on September 17, 1991. The two governments, on December 13 of the same year, signed the Inter-Korean Basic Agreement, which subsequently entered into force. If this is to be seen as a fundamental change of the situation, the National Security Law may be unconstitutional.

The simultaneous membership cannot be regarded as the effective mutual acknowledgement of statehood of South and North Korea. The mere situational changes mentioned above do not evidence a fundamental change of logical or realistic circumstances upon which the decisions were reached. Thus, the National Security Law is constitutional.

 

Constitutional Court

1997.1.16

89HunMa240[4]

Customary international law regarding the recognition of State (North Korea).

If Republic of Korea (Korea) recognizes North Korea as a state internationally, it can be seen as a fundamental change of the situation. Thus, the National Security Law and the related legislations may be unconstitutional.

Article 3 of the Constitution explicitly states, “The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.” Under law, no other state agencies in conflict with the sovereignty of the Republic of Korea can be recognized. Even though North Korea may exist as an independent sovereign state in international society, and our Government has used the title of North Korean Head of State to propose summit meetings with the North, this is not an evidence that North Korea is not an anti-government organization violating the territorial sovereignty of the Republic of Korea. Thus, the National Security Law and the related legislations are constitutional.

 

Constitutional Court

1998.11.26

97HunBa65[5]

Marrakesh Agreement Establishing the World Trade Organization.

Korea’s tariff rates changed after the signing of Marrakesh Agreement, thereby increasing the criminal sentence of the Accused. The Claimant (the Accused) insisted that in order to increase the punishment of tariff violation, there must be an amendment of the tariff laws or the Act on Aggravated Punishment of Specific Crimes. Thus he argues that increasing the punishment for tariff violation solely based on a treaty is a violation of fundamental rights under the Constitution.

The Marrakesh Agreement, a concluded treaty, has the same effect as domestic laws. Thus, even if crimes were to be created or punishments increased by this Agreement, it would be as if done so by domestic laws. In other words, even if the punishment for tariff violation were to be increased by the Marrakesh Agreement, it cannot be said that it was an unlawful criminal punishment or a punishment for an act that did not constitute a crime at the time of commission. Therefore, the increased punishment cannot be seen as unconstitutional. (dismissal)

 

Constitutional Court

2000.3.30

98HunMa206[6]

1965 Agreement on the Settlement of Problem Concerning Property and Claims and on the Economic Cooperation between the Republic of Korea and Japan.

Claimants have requested for a compensation since they have been injured being drafted into the military by force during the Japanese occupation. However, the government refused based on its interpretation of the Agreement. Claimants insisted that Korean government has the duty to submit a matter to the arbitration when there is a disagreement on the interpretation of the Agreement.

According to the Agreement, there is a wide discretion given to the government when deciding how to resolve the conflict regarding the compensation. Whether to rely on diplomatic resolution or to proceed arbitral procedures is up to the government’s discretion. Since there is no specific obligation of the government for the arbitration, the obligation to protect the residents abroad has not been violated. (dismissal)

2

Constitutional Court

2001.3.21

99HunMa139·142·156·160

(merged)

The Korean-Japanese Fisheries Agreement (1965 and 1998), United Nations Convention on the Law of the Sea (1994).

Claimant insisted that the 1998 Fisheries Agreement has abandoned the territorial sovereignty of Korea by having Dok-do island inside of the intermediate zone. Also, Claimant insisted that due to the rapid decrease of catch because of the new fisheries agreement, Koreans’ property right, right to pursue happiness, and freedom of career choice have been infringed.

Since the newly included Exclusive Economic Zone provision in the 1998 fisheries agreement has nothing to do with the territorial waters, there is no abandonment of Korea’s territorial sovereignty. Also, compared to the situation when the 1965 fisheries agreement had already been expired, the decrease of catch is rather due to the change of international maritime law, the UN Convention on the Law of the Sea. Thus, the 1998 fisheries agreement is constitutional.

3

Constitutional Court

2001.4.26

99HunGa13

International Covenants on Civil and Political Rights (Art. 11).

Claimant insisted that Korea’s Illegal Check Control Act, which gives criminal punishment to the person when his check is bounced, is inconsistent with the ICCPR Art. 11 which prohibits the use of imprisonment as a punishment for breach of contract.

According to the constitution, the international law is to be respected, not to be superior to Korean domestic laws. Also, the Act punishes a person not only because he has not fulfilled certain contractual obligation but because when there is also a suspicion of swindle. Thus, the Act is constitutional.

 

Constitutional Court

2001.9.27

2000HunBa20[7]

Agreement of the International Monetary Fund (Art. 9:3)

Claimants insisted that the International Monetary Fund has committed illegal actions against the Agreement, and thus they were damaged by losing their jobs. Claimants wanted the action of IMF workers to be subject of judgement based on the fact that the Agreement is regarded as a “law” under Korean legal system.

Article 68(2) of the Constitutional Court Law provides that the object of trial shall be “law,” which should be read as including “treaties.” The article in this case was concluded and ratified by the National Assembly and therefore has the effect of domestic law pursuant to Article 6(1) of the Constitution, which would be equivalent to the effect of legislation. Because this particular article regards the immunity from jurisdiction, its nature of direct application would make it subject to evaluation of constitutional validity. However, the actions of the IMF workers cannot be seen as unconstitutional. (dismissal)

4

Constitutional Court

2001.11.29

99HunMa494

The principle of international law of the former nationality standard.

Claimant insisted that the Act on the Immigration and Legal Status of Overseas Koreans is infringing the principle of equality by excluding Chinese and Russian national compatriots from the scope of its application following the former nationality standard.

Even though the former nationality standard, instead of jus sanguinis, became as the principle of international law, the limitation levels of retroactivity in other countries having the former nationality standard are not strict as Korea’s Act. Since the Act is not based on the pre-legislative scrutiny, it is incompatible with the constitution.

5

Constitutional Court

2003.1.30

2001HunBa95

Bilateral extradition treaties

Claimant insisted that Article 3 of Extradition Act, which gave the exclusive jurisdiction to Seoul High Court regarding the extradition, is inconsistent with the principle of due process and the right of access to the court.

Extradition Act is just for the international judicial cooperation based on the reciprocity between the parties of bilateral extradition treaties. The act is also to prevent any human right infringement during the extradition. Considering these overall backgrounds, the court cannot find that Article 3 of the Act is unconstitutional or infringing basic human rights even though there is no appeal procedure for the extradition decision.

 

Constitutional Court

2003.4.24

2002HunMa611[8]

Regional Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific.

Claimants alleged that the provision regarding preliminary examination breaches the Regional Convention, of which Korea is also a part, by failing to recognize the education obtained abroad and thus additionally limiting the achievement of domestic licenses.

Even though the Regional Convention has a legal effect as a domestic law, its status is not constitutional. Therefore, it cannot be a criterion for the evaluation of the constitutional validity of the preliminary examination provision. (dismissal)

6

Constitutional Court

2003.12.18

2003HunMa255

2003HunMa256

United Nations Charter.

Claimants insisted that the president’s decision and the National Assembly’s agreement to send troops to the Iraq War infringed their human rights and the right to pursue happiness since the war itself is the war of aggression violating the United Nations Charter and the procedure to have the UN Security Council’s resolution.

Since the claimants are  just members of the general public, not the actual members of troops being sent to the war, they do not have the right of claim regarding the government’s decision regardless of whether the war is inconsistent with the international law. (dismissal)

7

Constitutional Court

2003.12.18.

2003HunMa225

United Nations Charter.

Claimants insisted that the Cabinet meeting’s decision to send troops to the Iraq War infringed their human rights and the right to pursue happiness since the war itself is the war of aggression violating the United Nations Charter and the procedure to have the UN Security Council’s resolution.

The Cabinet meeting’s resolution is not the exercise of the public power which can be the subject of the constitutional appeal, regardless of whether the war is inconsistent with the international law. (dismissal)

8

Constitutional Court

2004.10.12

2004HunMa749

Uniform Customs and Practice for Documentary Credits (Art. 13).

Claimant insisted that the Uniform Customs and Practice for Documentary Credits Art. 13 by the International Chamber of Commerce infringes his property right since it only states the responsibility of the bank to the applicant for the credit, not to the export trader, when it comes to the duty of care regarding the documents with flaws.  

Since the international private organization’s is not the exercise of the public power which can be the subject of the constitutional appeal, the claims is to be dismissed.

9

Constitutional Court

2007.7.26

2005HunLa8

Korea’s modified schedule of concession of under the GATT Agreement (Marrakesh Agreement Annex I) (Indirectly related)

The administrative government made an agreement to persuade other WTO Members who were against the delayed tariffication of rice. Claimants, who are the members of the National Assembly, insisted that the government infringed their right to adopt and ratify a treaty by not submitting the agreement to the National Assembly.

According to the Constitution, the right of the individual legislators to adopt and ratify a treaty is based on the National Assembly’s right to agree on a treaty. Only the National Assembly’s right of agreement may be infringed by other external governmental institutions while the right of the legislators is just a matter of internal relations within the National Assembly. Thus, the Claimants do not have the right to make an argument. (dismissal)

10

Constitutional Court

2007.8.30

2003HunBa51

2005HunGa5

Universal Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights (Art. 4, Art. 8.1); International Covenants on Civil and Political Rights (Art. 22); ILO Conventions (87 – Freedom of Association and Protection of the Right to Organize Convention, 98 – Right to Organize and Collective Bargaining Convention, 151 – Labor Relations (Public Service) Convention)

Claimant insisted that the Government Officials Act Art. 66 para. 1, which has limited the government officials’ three primary rights as labors, is violating the international laws related to the labors’ rights and thus also unconstitutional.

The UDHR and the Recommendation are not legally binding. Since ICESC and ICCPR stated the principle of Statutory Reservation, the government can limit the worker’s right of participating in the labor union in accordance with the domestic law. Also, Korea has reserved the obligation under the ICCPR Art. 22. About the ILO Conventions (87, 98 and 151), Korea never have ratified. Furthermore, the recommendations from the ILO Committee on Freedom of Association and the OECD Trade Union Advisory Committee are not legally binding. Thus, the Act is constitutional.

11

Constitutional Court

2008.3.27

2006HunLa4

Customary international law of treaties (Elements for a treaty)

Claimant, a member of the National Assembly, insisted that the president has infringed his right of treaty ratification by having the “joint declaration to have a strategy talk for the military alliance” with the U.S. without any agreement from the National Assembly.

According to the customary international law, a treaty should be ‘an agreement to create the rights and obligations between the states and the international organizations by the written format.’ Since the joint declaration only contains the reciprocal respect toward each party, not having any legal right and obligation, it cannot be considered as a treaty. Therefore, it is not the subject of the National Assembly’s treaty ratification. (dismissal)

13

Constitutional Court

2009.2.26

2007HunBa35

Fisheries Agreement between Korea and Japan (1998) (Art. 9.1 / Annex 1)

Claimants, Korean fishermen, insisted that the Fisheries Agreement is inconsistent with the Constitution articles about Korea’s territory and also infringes their property right and the freedom of occupation.

Since the 1998 treaty is not directly regulating on the Exclusive Economic Zone (EEZ) or the territorial jurisdiction over Dokdo island, it is not violating the Constitution. Also, the fishermen’s loss is due to the reduced operation zone and the decrease of catch. These were the results of the United Nations Convention on the Law of the Sea (UNCLOS), not because of the 1998 Fisheries Agreement. Thus, the agreement is constitutional.

14

Constitutional Court

2010.10.28

2010HunMa111

Vienna Convention on Diplomatic Relations (Art. 22.2, Art. 29).

Claimant insisted that Korea’s law prohibiting the rally in front of the diplomatic mission within 100m is infringing the Constitutional right, the freedom of assembly.

Considering the necessity and proportionality of Korea’s Law on Assembly and Demonstration regarding the protection on diplomatic mission obliged by the Vienna Convention, the law is constitutional.

15

Constitutional Court

2011.7.28

2009HunBa267

International Covenants on Civil and Political Rights (Art. 11).

Claimant insisted that Korea’s Illegal Check Control Act, which gives a criminal punishment to the issuer of a check when he refers to insolvency, is inconsistent with the ICCPR Art. 11 which prohibits the use of imprisonment as a punishment for breach of contract.

The Act gives a criminal punishment not to enforce any civil obligation arising from the check contract but only to prevent any intentional harm to the stability of check transactions. Also, the Act is to guarantee the fundamental function of a check which can stabilize market transactions, not to compensate any financial loss of the check holder.

Thus, the Act is constitutional.

16

Constitutional Court

2011.8.30

2007HunGa12, 2009HunBa103

International Covenant on Civil and Political Rights; Customary international law.

Claimant insisted that the Establishment of Homeland Reserve Forces Act, which enforces military trainings by criminal punishment even to the conscientious objectors, is inconsistent with the international law.

ICCPR does not have specific article which guarantees the conscientious objection. Also, there cannot be found any universal customary international law that guarantees the conscientious objection. While the Act not being against any international law, it is constitutional.

17

Constitutional Court

2011.8.30

2008HunGa22

2009HunGa7

2009HunGa24

2010HunGa16

2010HunGa37

2008HunBa103

2009HunBa3

2011HunBa16

International Covenant on Civil and Political Rights; Customary international law.

Claimant insisted that the military service law, which enforces even the conscientious objectors to participate in the military service, is against the international law.

ICCPR does not have specific article which guarantees the conscientious objection. Also, there cannot be found any universal customary international law that guarantees the conscientious objection. While the law not being against any international law, it is constitutional.

18

Constitutional Court

2011.8.30

2008HunMa648

1965 Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan (Article 2 and 3).

Claimants, who are the atomic bomb survivors, claimed for the compensation to Japan. However, it was disputed whether their right to demand has been expired by the Agreement Article 2 (the article extinguished “all rights to demand” compensation for the damage due to the Japanese colonial ruling). Claimants insisted that the omission of the government not to proceed the dispute settlement procedure under Article 3 of the Agreement is infringing the constitutional rights of the claimants.

Since the Agreement Article 3 is based on the protection of the Claimants basic rights under the Constitution, the government has the obligation to proceed the dispute settlement procedure. Also, the government should take its responsibility of not making clear definition of “all rights to demand” in the Agreement Article 2, which became a disturbance to the protection of Koreans’ constitutional rights. Thus, the omission of the government is unconstitutional.

19

Constitutional Court

2011.8.30

2006HunMa788

1965 Agreement on the Settlement of Problem concerning Property and Claims and the Economic Cooperation between the Republic of Korea and Japan (Article 2 and 3).

Claimants, who were the comfort women under Japanese colonial rule, claimed for the compensation to Japan. However, it was disputed whether their right to demand has been expired by the Agreement Article 2 (the article extinguished “all rights to demand” a compensation for the damage due to the Japanese colonial ruling). Claimants insisted that the omission of the government not to proceed the dispute settlement procedure under Article 3 of the Agreement is infringing the constitutional rights of the claimants.

Since the Agreement Article 3 is based on the protection of the Claimants basic rights under the Constitution, the government has the obligation to proceed the dispute settlement procedure. Also, the government should take its responsibility of not making clear definition of “all rights to demand” in the Agreement Article 2, which became a disturbance to the protection of Koreans’ constitutional rights. Thus, the omission of the government is unconstitutional.

20

Constitutional Court

2011.12.29

2011HunBa57

Legal status of aliens guaranteed by international law and treaties.

Claimant, who is a foreigner without any residence in Korea, had to follow the order of security payment for the lawsuit cost according to the Civil Procedure Code. Claimant insisted this law is inconsistent with the Constitution Article 6 which guarantees legal status of aliens based on international law and treaties.

There is no specific international law or treaty applicable to Korea which prohibits the order of security payment to the non-residents for the lawsuit cost. Also, the Civil Procedure Code does not discriminate foreigners and Korean nationals regarding the non-residence in Korea. Thus, the law is constitutional.

21

Constitutional Court

2013.12.26

2013HunMa269

2013HunMa273

2013HunMa355

WTO General Agreement on Trade in Services (Article 16).

Distribution Industry Development Act stated the discretion of a local government head to order limited operation hours and obligatory temporary closing of big marts. Claimants insisted that the Act violates the GATS Agreement article 16 which prohibits any unannounced market access limitation on the foreign service suppliers. Thus, Claimants insisted that the Act is unconstitutional since GATS is a treaty to be respected by the Constitution.

Since the Act only gives a ‘discretion’ to the local government heads, the order of limited operation hours or obligatory temporary closing is not an obligation under this Act. Only when there has been a real action taken by the local governments based on this Act, it can be disputed whether this action is unconstitutional or not. Thus, the Claimants do not have right to claim against this Act without facing any direct infringement of their basic rights. (dismissal)

22

Constitutional Court

2014.5.29

2010HunMa606

International Labor Organization convention C135 - Workers' Representatives Convention (Article 2.1).

Trade Union and Labor Relations Adjustment Act Article 24 para. 2 prevented any payment of salary to the full-time trade union officer. However, if it is agreed between the employer and workers, the officer can get paid his salary based on the limited “time-off”. (“Time-off” system is to recognize the hours of trade union activities as a part of labor). Claimants insisted the Act is violating ILO convention which has to be recognized by the Constitution.

ILO Workers’ Representatives Convention Article 2 para. 1 is stating that “Such facilities in the undertaking shall be afforded to workers' representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently.” Since the time-off system is an alternative to the stricter separation policy reflected in Article 24 para. 2, it cannot be seen as the infringement of any labor right under the ILO convention. Thus, the Act is constitutional.

23

Constitutional Court

2015.4.30

2013HunGa26

2015HunGa7

2012HunBa95

2012HunBa261

2013HunBa77

2013HunBa78

2013HunBa192

2013HunBa264

2013HunBa344

2014HunBa100

2014HunBa241

Status of North Korea as a Member of the United Nations. (International legal status of North Korea).

National Security Law Article 7 regulates to punish any act benefiting the enemy such as praise of North Korea. Claimants insisted that the Law is denying the international legal status of North Korea recognized by the United Nations, so it is unconstitutional as it disregards international law.

The Law is just to pursue peaceful unification and protect national security, not ignoring any international legal status of North Korea as a state participating as a member of the United Nations. Thus, the law is constitutional.

24

Constitutional Court

2015.6.25

2013HunBa193

1999 International Convention on the Simplification and Harmonization of Customs Procedures (“Revised Kyoto Convention”) (Specific Annex D Article 13).

The Customs Act (before the revision in 2000) Article 106 para. 4 states that when the goods with import declaration is in the designated bonded area, the customs duty can be entirely or partly refunded if the goods are deteriorated or spoiled due to any disaster. The claimant insisted that the Act discriminates against other products since only the customs duty levied on the products located in the “designated bonded area” can be refunded. Thus, the claimant argued that the Act is unconstitutional as it violates Kyoto Convention Specific Annex D Article 13. Also, he pointed out that the Act narrowed down the scope of customs duty refund which has been recognized by other countries such as the U.S. and Japan.

Kyoto Convention Specific Annex D Chapter 1 states that “Customs warehousing procedure” means the Customs procedure under which imported goods are stored under Customs control in a designated place (a Customs warehouse) without payment of import duties and taxes. Article 13 states that “Goods deteriorated or spoiled by accident or force majeure while under the Customs warehouse procedure shall be allowed to be declared for home use as if they had been imported in their deteriorated or spoiled state, provided that such deterioration or spoilage is duly established to the satisfaction of the Customs.” As seen above, the treaty article is about the “customs warehousing procedure”, not about the refund of the customs duty which has been already paid.  

Therefore, the Act and the treaty article cannot be in conflict. Also, the claimant’s argument was based on the foreign legislation examples which cannot be the norms deciding the unconstitutionality. Those examples do not have any effect as an international law. Thus, the Act is constitutional.

25

Supreme Court

1969.5.27

69Do487

Status of Forces Agreement[9] (Agreed Minutes Article 22.9).

The appellant, the prosecutor, pointed out that the prohibition of any appeal to the court decision in the Agreement is not applicable to the case when there is an error of the ordinance. The appellant insisted that the violation of the ordinance can be seen as a kind of this “error of the ordinance.”

The word “error of the ordinance” in the agreement cannot be interpreted too broadly to include the case of the violation of the ordinance. Thus, the appeal is dismissed.

26

Supreme Court

1971.6.30

71Da1051

Status of Forces Agreement (Article 23.8).

The appellant, Korean government argued that the case must have been reviewed according to the agreement. Thus, the appellant insisted that the original decision made without this review is illegitimate.

Since there is no evidence showing that this case can be a dispute covered by the agreement, there is no need to review this case according to this agreement. Thus, even though the original decision was made without considering the agreement, it is not illegitimate.

27

Supreme Court

1971.6.30

71Da643

Status of Forces Agreement (Article 23.8).

The appellant, Korean government argued that the original decision, which recognized the state responsibility in the case without having any arbitral decision according to article 23.8 of the agreement, is illegitimate.

Article 23.8 requires the arbitral tribunal’s decision before any court decision when regarding whether there has been an illegal act conducted by the U.S. army during his execution of duty. Thus, without this arbitral decision, any court decision is illegitimate and so the appeal is upheld.

28

Supreme Court

1972.6.27

72Do970

Status of Forces Agreement (Agreed Minutes Article 22.9).

The appellant, the prosecutor, pointed out that the prohibition of any appeal to the court decision in the Agreement is not applicable to the case when there is an error of the ordinance. The appellant insisted that the violation of evidence rule or insufficient hearing can be seen as a kind of this “error of the ordinance.”

The word “error of the ordinance” in the agreement cannot be interpreted too broadly to include the case of the violation of evidence rule or insufficient hearing. Thus, the appeal is dismissed.

29

Supreme Court

1973.8.31

73Do1440

Status of Forces Agreement (22.1(b)).

The appellant insisted that according to the agreement, there is no jurisdiction of the national court on this case since there has been the declaration of martial law. 

According to Article 22.1(b) of the agreement, the cease of national court’s jurisdiction is valid only under the martial law. Thus, the court’s jurisdiction will be resumed after the withdrawal of the marital law, so the appeal is dismissed.

30

Supreme Court

1985.4.9

85Do308

Status of Forces Agreement (Article 9.3).

The appellant argued that his goods sent by parcel post are tax-free according to the agreement.

According to Article 9.3 of the agreement, it cannot be seen that the appellant’s goods are tax-free. Thus, the appeal is dismissed.

31

Supreme Court

1985.8.20

83Hu94

Treaty of Friendship, Commerce and Navigation between the Republic of Korea and the United States of America (Article 10.1).

The appellant insisted that the treaty gives a priority to an American applicant who applies for the patent right in Korea. The appellant relied on the national treatment and most favored nation treatment in the treaty which can be seen as the basis for this priority.

Even though the treaty recognized most favored nation treatment regarding American applicant, it only means to give “no less favorable treatment”. Since there is not any preference given to American applicants according to the treaty, the appeal is dismissed.

32

Supreme Court

1986.7.22

82DaKa1372

Convention for the Unification of International Carriage by Air (Article 1.2, 24.1, 26.3).

The appellant (claimant) insisted that the convention cannot applied prior to the civil law since Korea did not sign the protocol of the convention. The appellant also argued that there have been some errors in the interpretation and the application of the convention of the original trial.

The scope of ‘contracting parties’ of the convention is broad to include all states which are the parties of either the convention or the protocol of the convention. Thus, Korea should be seen as a party and the convention should be applied prior to the civil law as a special rule. Also, the convention’s terms and limitations must be applied to both cases of non-performance of a contract or illegal acts. Since the appellant’s claim had not fulfilled the conditions of the convention, the original trial’s rejection to his claims was correct. Thus, the appeal is dismissed.

33

Supreme Court

1986.10.28

86Nu212

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 8.1, 8.5, 8.6).

The appellant (National Tax Service, defendant) argued that the original trial’s decision which has recognized the exemption of the claimant’s income tax was not correct. 

Since the convention explicitly admits that the income for the research project would be the subject of tax exemption, there was no right existed for the appellant (defendant) to deduct withholding tax of the claimant. Thus, the appeal is dismissed.

34

Supreme Court

1986.11.25

85Hu13

Convention of Paris for Production of Industrial Property (Article 6 septies).

The appellant pointed out that Korea’s Trademarks Law Article 46.4 invalidates any trademarks registration if it violates the Paris convention. Thus, the trademarks registration in the case is not valid since it violates the convention article 6 septies.

It is true that the trademarks registration may be inconsistent with the convention article 6 septies. However Korea has joined the convention after the trademarks registration and there is no retroactive effect of the convention. Thus, the trademarks registration cannot be seen as the violation of the convention. The appeal is dismissed.

35

Supreme Court

1987.1.20

86Do2322

Status of Forces Agreement (Article 22.9 (c), Agreed Minutes Article 22).

The appellant argued that the testimony of a witness, who is no longer able to attend the court because of his return to the U.S., is not valid since this situation does not exactly match up with the conditions under the articles of the agreement. Thus, the appellant insisted that Korea’s criminal procedure law Article 314 cannot be applied and this testimony cannot be recognized.

The articles of the agreement just have stated the rights guaranteed to the member of the U.S. army during the trial proceeded by Korea’s jurisdiction. There is a premise of any enforced or volunteered attendance by the witness in these articles. Thus, it cannot be seen as a special rule which exempts the application of Korea’s criminal procedure law Article 314. The appeal is dismissed.

36

Supreme Court

1987.3.10

86Nu225

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 8).

The appellant (Head of tax office, defendant) argued that the original trial’s decision which has recognized the exemption of the claimant’s income tax was not correct.

Since the convention explicitly admits that the income for the ordinary research project, which was not any special instruction of knowhow, would be the subject of tax exemption, there was no right existed for the appellant (defendant) to impose the corporate tax to the claimant. Thus, the appeal is dismissed.

37

Supreme Court

1987.9.22

85Nu413

Convention on Nomenclature for the Classification of Goods in Customs Tariffs and Protocol of Amendment (Article 2(a), Article 4(b)).

According to the convention, Korea shall compile its customs tariff in conformity with the nomenclature agreed in the convention. However, Korean Customs Law stated higher tariff rate according to the nomenclature which is different from the convention. The appellant argued that Korean customs office should have applied the lower tariff rate based on the convention’s nomenclature recommended by the Customs Co-operation Council authorized by the convention.

Even though the Korean customs office has a duty to follow the recommendation by the Council, however, this mere recommendation does not have the same legal effect as Korean Customs Law. Even if the recommendation can be seen as having the same legal effect with Korean domestic laws, Korean Customs Law Article 43.14 already have stated its priority over the convention when its tariff rate is higher than the convention. Thus, the appeal is dismissed.

38

Supreme Court

1987.11.24

85Nu448

Convention on Nomenclature for the Classification of Goods in Customs Tariffs and Protocol of Amendment (Article 2(a), Article 4(b)).

The appellant argued that Korean customs office should apply the lower tariff rate based on the convention’s nomenclature recommended by the Customs Co-operation Council authorized by the convention.

Even though there has been a decision by the Council to modify tariff schedule, however, this decision does not have the same legal effect as Korean Customs Law without any reception procedure to be a domestic law. Also, Korean Customs Law Article 43.14 already have stated its priority over the convention when its tariff rate is higher than the convention. Thus, the appeal is dismissed.

39

Supreme Court

1987.11.24

86Hu138

Convention of Paris for the Protection of Industrial Property (Article 10 bis).

The appellant (claimant) argued that the defendant’s trademark is inconsistent with the convention article 10 bis since it is similar to the appellant’s trademark which is the world’s well-known mark.

Even though the appellant’s trademark is very well-known, the trademarks in this case have enough differences to be distinguished. Thus, there is no violation of the convention and the appeal is dismissed. 

40

Supreme Court

1988.2.9

84DaKa1003

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Articles 1.1, 2, 3, 4, 5).

The appellant (claimant) argued the original trial’s rejection to the arbitral award and its enforcement was not correct according to the convention.  

The foreign arbitral award can be recognized and enforced by the convention when it is consistent with the article 1.1 and there should be a written agreement for this arbitration between the parties. If the national court which has the authority to enforce the arbitral award decides that the conditions are not met, it can deny the recognition and enforcement of the award. The original trial’s thought that there has not been any written agreement for the arbitral procedures between the claimant and the defendant. This reason for the rejection to the claim seems reasonable based on the proper interpretation of the convention. Thus, the appeal is dismissed.

41

Supreme Court

1988.10.24

87Nu1100

Convention on Nomenclature for the Classification of Goods in Customs Tariffs and Protocol of Amendment.

The appellant argued that the convention and the Customs Co-operation Council’s decision should have been applied as having the same legal effect with domestic law.

Even though there has been a decision by the Council to modify tariff schedule, however, this decision does not have the same legal effect as Korean Customs Law without any reception procedure to be a domestic law stated in Korean Customs Law Article 43.12. Also, the notification to the heads of tax offices recommending to apply the tariff rate according to this decision cannot be seen as having same legal effect with the domestic law. Thus, the appeal is dismissed.

42

Supreme Court

1989.3.14

87Nu1115

Convention on Nomenclature for the Classification of Goods in Customs Tariffs and Protocol of Amendment.

The appellant argued that the convention and the Customs Co-operation Council’s decision should have been applied as having the same legal effect with domestic law.

Even though there has been a decision by the Council to modify tariff schedule, however, this decision does not have the same legal effect as Korean Customs Law without any reception procedure to be a domestic law stated in Korean Customs Law Article 43.12. Also, the notification to the heads of tax offices recommending to apply the tariff rate according to this decision cannot be seen as having same legal effect with the domestic law. Thus, the appeal is dismissed.

43

Supreme Court

1989.10.10

89Do1123

Status of Forces Agreement (Article 22, Agreed Minutes Article 22).

The appellant argued that according to the agreement, the original court cannot give the appellant guilty verdict if the original trial’s decision had been remanded after reversal. Also, the appellant argued that the arraignment cannot be modified.

In the articles of the convention, there is no reasonable ground for the appellant’s interpretation of the agreement. Thus the appeal is dismissed.

44

Supreme Court

1990.4.10

89DaKa20252

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Articles 4(b), 4(c), 2.1, 2(d), 2(e), 5.1, 5.2).

The appellant (defendant) argued the original trial’s recognition of the arbitral award and its enforcement was not correct according to the convention.  

The foreign arbitral award can be recognized and enforced by the convention when it is consistent with the article 1.1 and there should be a written agreement for this arbitration between the parties. About this condition, the applicant of the arbitral award has the burden of proof. Here in this case, the claimant had fulfilled to prove there has been a written agreement for the arbitration. If the national court which has the authority to enforce the arbitral award decides that the conditions are not met, it can deny the recognition and enforcement of the award. The original court recognized the arbitral award based on the fact that all the conditions in the convention are fulfilled. This seems to be a reasonable decision based on the proper interpretation of the convention. Thus, the appeal is dismissed.

45

Supreme Court

1990.7.24

89Hu1479

Convention of Paris for Production of Industrial Property.

The appellant argued that when the convention party’s trademark is protected by the convention, this can supplement the defect of trademark registration requirements.

Even if the convention has the same legal effect with domestic law to protect the party state’s trademarks, it cannot justify any defect of trademark registration requirements according to the domestic law. Thus, the appeal is dismissed.

 

Supreme Court

1990.9.25

90Do1451[10]

Customary international law regarding the recognition of State (North Korea).

The appellant argued that he National Security Law, which was the basis of the lower court’s decision against the appellant, is unconstitutional since it sees North Korea as an anti-government organization. According to the appellant, this point of view contradicts to the international pacifism stated in the constitution.

Article 3 of the Constitution explicitly states, “The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.” Under law, no other state agencies in conflict with the sovereignty of the Republic of Korea can be recognized. Even though North Korea may exist as an independent sovereign state in international society, and our Government has used the title of North Korean Head of State to propose summit meetings with the North, this is not an evidence that North Korea is not an anti-government organization violating the territorial sovereignty of the Republic of Korea. Thus, the National Security Law is constitutional and the decision based on this law cannot be illegal. The appeal is dismissed.

46

Supreme Court

1990.11.27

90Hu52

Exchange of Letters between the Government of the Republic of Korea and the Government of the United States of America concerning the Provision of Product Patent Protection for certain Pending Process Patent Applications.

The appellant argued that since the Patent Act has been modified to incorporate the exchange of letters, the applications for process patents that are pending in Korea on the effective date of the new law may be amended to include product patent claims upon the request of the applicant. Also, the opportunity to submit product claims will be in effect for 90 days following the effective date of the Korean patent law. Thus, the appellant argued his claims for patents are to be accepted

According to the original trial decision, the appellant’s application for patents was not accepted due to the old Patent Act article 4.2. Even though the agreement allows amendment of the application pending in Korea, there has not been any specific procedures for filing such amendments regarding the product patent claims. Since the original trial’s decision was correct, the appeal is dismissed.

47

Supreme Court

1991.8.27

90Hu1512

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (Article 7).

The appellant argued that the newly modified Enforcement Decree of the Patent Act authorized the international depository institutions according to Budapest Treaty. Thus, the conditions of the enforcement decree are fulfilled since the strains are deposited in these institutions.  

Even though the newly modified Enforcement Decree of the Patent Act incorporated Budapest Treaty, it will be valid after the treaty becomes effective in Korea. Since the treaty became effective after the appellant’s depository of the strains, the newly modified enforcement decree cannot be applied. Thus, the appeal is dismissed.

48

Supreme Court

1991.11.12

90Hu2256

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (Article 7).

The appellant argued that the newly modified Enforcement Decree of the Patent Act authorized the international depository institutions according to Budapest Treaty. Thus, the conditions of the enforcement decree are fulfilled since the strains are deposited in these institutions

Even though the newly modified Enforcement Decree of the Patent Act incorporated Budapest Treaty, it will be valid after the treaty becomes effective in Korea. Since the treaty became effective after the appellant’s depository of the strains, the newly modified enforcement decree cannot be applied. Thus, the appeal is dismissed.

49

Supreme Court

1991.11.26

90Hu2454

Exchange of Letters between the Government of the Republic of Korea and the Government of the United States of America concerning the Provision of Product Patent Protection for certain Pending Process Patent Applications.

The newly modified Patent Act has incorporated the exchange of letters and the applications for process patents that are pending in Korea on the effective date of the new law may be amended to include product patent claims upon the request of the applicant. Also, the opportunity to submit product claims will be in effect for 90 days following the effective date of the Korean patent law. The appellant argued that if the patent applicant has the U.S. nationality when the new Patent Act became effective, the conditions under the exchange of letters should be applied.

Even if the patent applicant had the U.S. nationality, he was not the first patent applicant who can benefit from the exchange of letters. Thus, the appeal is dismissed.

50

Supreme Court

1992.2.25

91Hu578

Exchange of Letters between the Government of the Republic of Korea and the Government of the United States of America concerning the Provision of Product Patent Protection for certain Pending Process Patent Applications.

The newly modified Patent Act has incorporated the exchange of letters and the applications for process patents that are pending in Korea on the effective date of the new law may be amended to include product patent claims upon the request of the applicant. Also, the opportunity to submit product claims will be in effect for 90 days following the effective date of the Korean patent law. Thus, the appellant argued his claims for patents are to be accepted.

Even though the agreement allows amendment of the application pending in Korea, the specific procedures for filing such amendments regarding the product patent claims in this case exceeded the due date stated in the exchange of letters. Thus, any amendment after the set period cannot be recognized and the appeal is dismissed.

51

Supreme Court

1992.3.31

90Hu1260

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (Article 7).

The appellant argued that the newly modified Enforcement Decree of the Patent Act authorized the international depository institutions according to Budapest Treaty. Thus, the conditions of the enforcement decree are fulfilled since the strains are deposited in these institutions

Even though the newly modified Enforcement Decree of the Patent Act incorporated Budapest Treaty, it will be valid after the treaty becomes effective in Korea. Since the treaty became effective after the appellant’s depository of the strains, the newly modified enforcement decree cannot be applied. Thus, the appeal is dismissed.

52

Supreme Court

1992.3.31

91Hu1533

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (Article 7).

The appellant argued that the newly modified Enforcement Decree of the Patent Act authorized the international depository institutions according to Budapest Treaty. Thus, the conditions of the enforcement decree are fulfilled since the strains are deposited in these institutions

Even though the newly modified Enforcement Decree of the Patent Act incorporated Budapest Treaty, it will be valid after the treaty becomes effective in Korea. Since the treaty became effective after the appellant’s depository of the strains, the newly modified enforcement decree cannot be applied. Thus, the appeal is dismissed.

53

Supreme Court

1992.5.12

91Nu6887

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 6, 14.4).

The appellant insisted that the use or infringement of patent right which has been registered in the U.S. is not a matter in Korea since there is no registration of this patent right in Korea. The appellant just paid the fee for using the patent to the patent holder through its affiliate in the U.S., not making any direct payment for the use of patent in Korea. Thus, the deduction of withholding tax by the tax office is not legitimate.

The original trial thought that when the product, which is produced in Korea by using the patent registered in the U.S., is exported to the U.S., the patent right should be protected also in Korea. Thus, the original trial decided that the tax office deducted withholding tax from the appellant’s income is legal. However, since there is no patent right existing in Korea without any registration, the fee for using the patent should be seen as being paid in the U.S., not in Korea. Therefore, the original trial made an error and the appeal is upheld.

54

Supreme Court

1992.7.24

92Do78

Status of Forces Agreement (Article 16.1 first sentence)

Article 16.1 first sentence of the Agreement stated that “the United States may contract for any materials, supplies, equipment and services to be furnished or undertaken in the Republic of Korea for purposes of, or authorized by, this Agreement, without restriction as to choice of contractor, supplier or person who provides such services.” The appellant argued that this provision should apply even to the national who provides services in accordance with the contract made with the U.S. army.

The original trial’s decision, which has denied the applicability of Article 16.1 of the Agreement to the nationals just having a contract with the U.S. army, is correct. Thus, the appeal is dismissed.

55

Supreme Court

1993.7.13

92Hu1028

Exchange of Letters between the Government of the Republic of Korea and the Government of the United States of America concerning the Provision of Product Patent Protection for certain Pending Process Patent Applications.

The appellant argued that the treaty should be applied to all the patent application including the appellant’s.

The treaty can be applied only to the patent application which has been made first by the U.S. national, not to any other application by a third state national. Thus, the appeal is dismissed.

56

Supreme Court

1993.10.12

92Do373

Convention on International Civil Aviation (Article 54), Annex 13 Aircraft Accident Investigation (Article 5.12, Attachment D).

The appellant argued the convention Article 5.12 is imposing Korea a duty not to use any investigation records when there can be some negative effects on the future investigation of the aircraft accident. Also, the contents in the attachment D has a legal effect as an international standard.

Article 5.12 is just imposing an obligation only to the investigating state, not to any other third state. Also, the attachment D is mere a guideline, not having any legal effect as an international standard. Thus, the appeal is dismissed.

57

Supreme Court

1995.6.13

94Nu7621

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 8.3).

The appellant argued that the corporate taxation was imposed unreasonably since there had been a miscalculation of the domestically-generated income which is also inconsistent with the convention Article 8.3.

The original trials decision to calculate the domestically generated income was reasonable and the convention Article 8.3 has not limited any specific procedures and methods of expense deduction. Thus, the appeal is dismissed.

58

Supreme Court

1995.8.25

94Nu7843

Convention between the Republic of Korea and Japan for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 4.1, 4.4, 6.1, 12).

The appellant argued that since the period of project done by Japanese companies in Korea has been less than six months, the income from this project should be exempted from the withholding taxation according to the convention.

The convention explicitly stated the tax exemption of any income of the corporate which does not have permanent residence in Korea. Also, the project period less than six months fulfils this tax exemption. Therefore, the appeal is upheld.

59

Supreme Court

1995.10.13

94Hu2018

Exchange of Letters between the Government of the Republic of Korea and the Government of the United States of America concerning the Provision of Product Patent Protection for certain Pending Process Patent Applications.

The appellant argued that the microorganisms “invented” should be included in the scope of ‘product patent’ according to the exchange of letters.

According to the interpretation of the exchange letters, it is obvious that microorganisms cannot be included in the scope of ‘product patent’. Thus, the appeal is dismissed.

60

Supreme Court

1996.4.12

95Hu934

Convention of Paris for Production of Industrial Property (Article 6 septies).

The appellant argued the trademark in the case had been registered being inconsistent with the convention Article 6 septies. Thus, the appellant insisted that the original trial’s decision to reject his claim due to the lack of enough evidence was not reasonable.

The original trial’s reasoning based on the interpretation of the convention is reasonable. However, due to the lack of enough examination on the other claims made by the appellant, the original court’s decision has to be reconsidered. Thus, the appeal is upheld.

61

Supreme Court

1997.4.22

96Do1727

Universal Copyright Convention.

The appellant insisted that the copyright of the character created by himself should be protected according to the convention.

The character was created after the effective date of the convention in Korea, and the copyright cannot be recognized before this effective date. Thus, the appeal is dismissed.

62

Supreme Court

1997.11.14

96Nu2927

Convention between the Republic of Korea and Japan for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 9.1).

The appellant argued that application form for the recognition of residence is a necessary condition to be the subject of limited tax rate application according to Article 9.1 of the convention.

The convention just has stated the examples of the procedures to find out the residence of a person, not requiring the submission of the application form as the necessary condition. Thus, the appeal is dismissed.

63

Supreme Court

1998.12.17

97Da39216

Customary International Law regarding Foreign state’s Jurisdiction.

The appellant insisted that the original trial’s rejection to its jurisdiction is not consistent with the interpretation of the customary international law.

Even though the original trial abandoned its jurisdiction due to the fact that defendant is a part of the U.S. government, however, it cannot be seen that the customary international law has stated the exemption of foreign state’s jurisdiction over the other state’s private actions. Thus, the appeal is upheld.

 

Supreme Court

1999.3.26

96Da55877[11]

International Covenants on Civil and Political Rights (Art. 2.3, 19).

The appellant insisted that the punishment given to the appellant based on the Labor Dispute Adjustment Act is not consistent with Article 19 of the Covenant which stated the freedom of expression. Also, Article 2.3 of the Covenant provides for the obligation of states under international law to secure legal systems that would ensure effective remedy for persons whose rights or freedoms as recognized in the covenant are violated. According to the appellant, if Korea has not provided a proper remedy procedure, it violates the Covenant.

Article 19.3 also has stated that “It may therefore be subject to certain restrictions … For the protection of national security or of public order, or of public health or morals.” The punishment was consistent with this purpose of restriction. About Article 2.3, the remedies such as compensation suits against the state can be claimed based on domestic law. Therefore, the above provision does not individually create a special right for a person to claim remedies.

64

Supreme Court

1999.12.7

97Hu3289

Convention of Paris for Production of Industrial Property (Article 3, 6).

The appellant argued that his trademark registration should be valid since it is not infringing any patent right protected by the convention.

The original trial thought that the notification requirement stated in the convention to obtain the patent right in a member state is not an essential condition for the patent to be protected by the convention. However, according to the proper interpretation of the convention, the patent right cannot be protected without the notification requirement fulfilled. Thus, the appeal is upheld.

65

Supreme Court

2000.1.21

97Nu16862

Convention between the Republic of Korea and Japan for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 6.3).

The appellant challenged the original trial’s interpretation of the convention.

According to the convention Article 6.3, “In the determination of the industrial or commercial profits of a permanent establishment which a resident or corporation of a Contracting State has in the other Contracting State, there shall be allowed as deductions expenses, wherever incurred, which are reasonably connected with such profits, including executive and general administrative expenses.” Since the calculation of the taxation was correct, the appeal is dismissed.

66

Supreme Court

2000.6.13

98Hu1273

Convention of Paris for Production of Industrial Property (Article 6 quinquies para.B.1).

The appellant challenged the meaning of the trademark being “devoid of any distinctive character.”

The original trial’s interpretation of the convention article, especially regarding the meaning of trademark being “devoid of any distinctive character”, has been correct since it means the trademark cannot be seen as noticeable or distinguishable. Thus the appeal is dismissed.

67

Supreme Court

2001.3.9

2000Do5590

Status of Forces Agreement (Agreed Minutes Article 22).

The appellant argued that the number of the days of pre-trial detention should not be included in the decision of the regular penalty.

According to the convention, it is allowed to include the number of the days of pre-trial detention in the regular penalty. Even though there did not need any announcement of this inclusion, it is not an illegal decision. Thus, the appeal is dismissed.

68

Supreme Court

2002.10.22

2002Da32523

Convention for the Unification of Certain Rules for International Carriage by Air (Article 19).

According to Article 19 of the convention, “the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.” The appellant (defendant) argued that he is not the carrier responsible to the damage and the damage due to delay only refers to the one occurred during the flights. 

Since the appellant is the contracting carrier who has entrusted the actual carrier, he can be seen as the carrier according to the convention. Moreover, the damage due to the delay of loading is also the damage included in Article 19 of the convention. Thus, the appeal is dismissed.

69

Supreme Court

2003.1.10

2000Da31045

Convention for the Unification of Certain Rules for International Carriage by Air (Article 18, 25).

The appellant argued that the liability clause in the convention should be applied to the case.

Since the damage in this case has occurred after the date when the convention became effective in Korea, the liability clause cannot be applied to this case. There is no error in the original trial’s decision, so the appeal is dismissed.

70

Supreme Court

2003.2.26

2001Da77840

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Article 5.1(e)).

The appellant (claimant) insisted that Korean court has the authority to cancel the arbitral decision in this case. Also, the appellant argued that “the law of which, that award was made” in Article 5.1(e) of the convention should imply the law applied by the arbitrator to substance of the case.

According to Article 5.1(e), “Recognition and enforcement of the award may be refused” only when “the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.” Thus, only the competent authority of “the country in which that award was made” or “the country under the law of which that award was made” can cancel the arbitral decision. While Korean law applied to the substance of the case is not the law on which the award has relied, Korean court does not have authority to cancel the arbitral decision. Thus, the appeal is dismissed.

71

Supreme Court

2003.4.11

2001Da20134

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Article 5.2(b)).

The appellant argued that Korean court can refuse the enforcement of the arbitral award if there is any proper reason to claim against this arbitral award.

According to Article 5.2 of the convention, the enforcement of the arbitral award can be refused when it is against the public order or the state. In this case, there is enough evidence for the court to refuse the enforcement, so the appeal is upheld.

72

Supreme Court

2004.4.27

2004Do482

Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America.

The appellants disputed on whether the number of days for the extradition procedures can be included in the number of the days of pre-trial detention.

The days for the extradition procedures only cannot be seen as the part of execution by legal process, so the number of these days cannot be included in the number of days of pre-trial detention. Thus, the appeal is dismissed.

73

Supreme Court

2004.7.9

2002Da16729

Convention for the Unification of Certain Rules for International Carriage by Air (Article 13).

The appellant argued that there has been a violation of the notification obligation of the convention. 

Even though the transportation broker notified the arrival only to the designated notify party, not to the cargo receiver, it cannot be seen as a violation of the convention. However, due to the other legal issues, the appeal is upheld.

74

Supreme Court

2004.7.22

2001Da58269

Convention for the Unification of Certain Rules for International Carriage by Air (Article 25, 29).

The appellants disputed on the interpretation of the convention regarding Article 25 and 29.

According to Article 29, “the right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. Also, “the method of calculating that period shall be determined by the law of the court seized of the case.” Thus, even if the damage occurred due to the carrier, this provision is still applicable and the period in the provision is ‘period of filing’. According to Article 25, Article 22 will not be applied only “if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.” Here in this case, there is no evidence provided whether there was any intent to cause damage.

75

Supreme Court

2004.7.22

2001Da67164

Convention for the Unification of Certain Rules for International Carriage by Air (Article 18.1).

The appellant argued that even to the cargo which is in the bonded shed should be protected under the convention.

According to the convention Article 18.1, the cargo in the bonded shed cannot be seen as being “shipped by air”, so it cannot be protected by this provision. Thus, the appeal is dismissed.

76

Supreme Court

2004.12.10

2004Da20180

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Article 4.1, 4.2)

The appellant insisted that the submission of the documents listed in Article 4.1 of the convention is not necessary to request for the enforcement of foreign arbitral award. Also, the translation required by Article 4.2 is just a supplementary requirement.

According to the interpretation of the convention, the submission of the listed documents are not necessary when there is no dispute on the arbitral award or the existence of arbitral agreement between the parties. Also, Article 4.2 does not strictly require a proper translation. Thus, the original trial’s refusal to enforce the arbitral award is not reasonable. The appeal is upheld.

77

Supreme Court

2005.9.29

2005Da26598

Convention for the Unification of Certain Rules for International Carriage by Air (Article 25).

According to Article 25 of the convention, Article 22 will not be applied only “if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.” The appellant challenged the original trial’s interpretation of this article.

Since the burden of proof of Article 25 is on the person who insists there had been any intent of the servant to cause damage, enough evidence should be submitted by this person. However, without evidence, the original trial’s decision cannot be seen as incorrect. The appeal is dismissed.

78

Supreme Court

2005.10.28

2005Do5822

Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America (Article 15).

The appellants disputed on the legality of the public trial procedure when the suspect with the crime eligible for the extradition is found innocent.  

Even though the suspect with the crime eligible for the extradition became innocent, the extradition is valid unless the U.S. government agreed on this extradition. Thus, the following public trial procedures are legal.

79

Supreme Court

2006.4.28

2005Da30184

Convention for the Unification of Certain Rules for International Carriage by Air (Article 18.1).

The appellant argued that the convention should not be applied regarding the issue of the airway bill.

According to the precedents, the convention is applied prior to the civil law or commercial law regarding the legal issues of international carriage by air. The original trial’s application of this convention was correct, so the appeal is dismissed.

80

Supreme Court

2006.5.11

2005Do798

Status of Forces Agreement.

The appellant argued the agreement can be applied to this case.

Since the convention explicitly stating that “the members of the U.S. army” refers to the persons working in any troops of the U.S., excluding persons who are ordinarily resident in the Republic of Korea. Thus, the convention cannot be applied and the appeal is dismissed.

81

Supreme Court

2006.10.13

2005Da3724

Convention for the Unification of Certain Rules for International Carriage by Air (Article 25).

According to Article 25 of the convention, Article 22 will not be applied only “if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.” The appellant challenged the original trial’s interpretation of this article.

Since the burden of proof of Article 25 is on the person who insists there had been any intent of the servant to cause damage, enough evidence should be submitted by this person. However, without evidence, the original trial’s decision cannot be seen as incorrect. The appeal is dismissed.

82

Supreme Court

2007.6.14

2007Do2348

Status of Forces Agreement (Agreed Minutes Article 22.9).

The appellant, the prosecutor, pointed out that the prohibition of any appeal to the court decision in the Agreement is not applicable to the case when there is an error of the ordinance. The appellant insisted that the violation of evidence rule or insufficient hearing can be seen as a kind of this “error of the ordinance.”

The word “error of the ordinance” in the agreement cannot be interpreted too broadly to include the case of the violation of evidence rule or insufficient hearing. Thus, the appeal is dismissed.

83

Supreme Court

2007.9.7

2005Du8641

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 6.3, 14.4).

The appellant (defendant) argued that there has been an error in the original trial’s decision regarding the calculation of domestically generated income related to the use of patent license.

According to the articles of the convention, the incomes would be treated as the domestically generated income only when the patent license is used domestically. The license has been used in the U.S., not in Korea, thus the original court’s decision was correct. The appeal is dismissed.

84

Supreme Court

2007.12.27

2007Du11177

Convention on the Conservation of Antarctic Marine Living Resources.

The appellant argued the limitation on the cargo unloading in the convention cannot be applied to this case, which is related to the dissostichus mawsoni importation.

 

According to the convention, regardless of the flag state of the fishing vessel, the carrier vessel is the subject of the unloading limitation in accordance with the conservation measures by the commission for the conservation of Antarctic marine living resources. Thus, the appeal is dismissed.

85

Supreme Court

2008.2.1

2007Do7811

Status of Forces Agreement (Agreed Minutes Article 22.9).

The appellant, the prosecutor, pointed out that the prohibition of any appeal to the court decision in the Agreement is not applicable to the case when there is an error of the ordinance. The appellant insisted that the violation of evidence rule or insufficient hearing can be seen as a kind of this “error of the ordinance.”

The word “error of the ordinance” in the agreement cannot be interpreted too broadly to include the case of the violation of evidence rule or insufficient hearing. Thus, the appeal is dismissed.

86

Supreme Court

2008.3.14

2007Do10435

Status of Forces Agreement (Agreed Minutes Article 22).

The appellant argued that the number of the days of pre-trial detention should not be included in the decision of the regular penalty.

According to the convention, it is allowed to include the number of the days of pre-trial detention in the regular penalty. Even though there did not need any announcement of this inclusion, it is not an illegal decision. Thus, the appeal is dismissed.

87

Supreme Court

2008.7.24

2007Du3930

Convention relating to the Status of Refugees (Article 1).

The appellant argued that there had been insufficient hearing to recognize the defendant as a refugee and misunderstanding of the concept of ‘refugees’ by the original trial.

According to the convention, the ‘refugee’ means the person “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.” The defendant can be seen as a refugee who was afraid of political oppression. Thus, the original trial made no error and the appeal is dismissed.

88

Supreme Court

2008.7.24

2007Du19539

Convention relating to the Status of Refugees (Article 1).

The appellant (claimant) argued that he can be recognized as a refugee because he was ‘persecuted’ due to his political activities.     

The meaning of ‘persecution’ in the convention is the existence of hear which can harm the refugee. However, in this case, there cannot be seen enough persecution to the appellant and the conditions to be recognized as a refugee is not fulfilled. Thus, the appeal is dismissed.

89

Supreme Court

2009.5.28

2006Da20290

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Article 5.1, 5.2).

The appellant argued that the refusal by the original trial to enforce the arbitral award is not reasonable according to the convention.

According to the convention, “Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (b) the recognition or enforcement of the award would be contrary to the public policy of that country.” Since not only domestic public order but also the stability of international transaction can be regarded as a part of ‘public policy’, the original trial’s refusal is reasonable. Thus, the appeal is dismissed.

90

Supreme Court

2009.5.28

2009Do1446

Extradition Treaty between the Government of the Republic of Korea and the Government of the United States of America.

The appellants disputed on whether the number of days for the extradition procedures can be included in the number of the days of pre-trial detention.

The days for the extradition procedures only cannot be seen as the part of execution by legal process, so the number of these days cannot be included in the number of days of pre-trial detention. Thus, the appeal is dismissed.

91

Supreme Court

2009.6.11

2006Du5175

Convention between the Republic of Korea and France for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (Article 24).

The appellants disputed on the meaning of ‘non-discrimination principle’ regarding the taxation matter in the convention article 24.

If a domestic juridical person is offered any management support from the foreigner and remit the payment, it cannot be seen as the ‘same situation’ as the branch of a foreign juridical person remitting the payment to its head office. Thus, different taxations can be applied to these situations and the appeal is dismissed.

92

Supreme Court

2009.10.29

2007Do10735

Berne Convention for the Protection of Literary and Artistic Works (Article 5), WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

The appellant (defendant) argued that the broadcasting in the member countries of the convention and the TRIPs agreement is not protected by Korean Copyright Law.

Since Korean Copyright Law explicitly states the protection of the copyright which is protected by the convention and the TRIPs agreement, the broadcasting in other countries which are the members of these agreements can be protected by Korean Copyright Law. Thus, the appeal is dismissed.

93

Supreme Court

2010.1.28

2007Du6632

Convention between the Republic of Korea and Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income (Article 12.3).

The appellant argued the remittance of the payment for using exam questions cannot be seen as the ‘royalty’.

According to Article 12.3 of the convention, “the term "royalties" in this Article means payments or credits.” Since the appellant collected the examination fee and paid certain proportion for the exam questions, it can be seen as a ‘royalty’. Thus, the appeal is dismissed.

94

Supreme Court

2010.4.29

2010Da3148

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Article 5.2).

The appellant argued that it is not possible for the court to refuse the enforcement of arbitral award during the stage of the enforcement.

According to the interpretation of the convention, even if it is already the stage of enforcement of the arbitral award, the court can refuse when there occurred any reason for claim objection. Thus, the appeal is dismissed.

95

Supreme Court

2011.2.24

2007Du21587

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 5.1, 6.8, 8.2).

The appellant argued the tax calculation of the original trial was in error, being inconsistent with the convention.

According to the proper interpretation of the convention, if the American broadcasting company’s affiliate in Korea is an independent juridical person, the payment to the mother company cannot be deducted from the income calculation. Thus, the original trial’s calculation was in error and the appeal is upheld.

 

Supreme Court

2012.3.24

2009Da22549[12]

1965 Agreement between the Republic of Korea and

Japan Concerning the Settlement of Problems in Regard to Property and Claims and

Economic Cooperation (Article 1, 2).

The appellants were Korean nationals who have filed a suit against the defendant at the Hiroshima District Court of Japan for compensation for the torts committed by the Mitsubishi company such as forced labor and for the outstanding wages. They have argued that their right to claim of compensation has not been extinguished to the Agreement.

The Agreement was rather a political agreement aimed at resolving the financial and civil debt or credit relationship between Korea and Japan based on Article 4 of the San Francisco Peace Treaty. The fact that the economic cooperative funds provided by the Japanese government to the Korean government pursuant to Article 1 of the Claims Agreement does not appear to resolve the issue of rights based on Article 2 nor have a legal compensatory relationship to the same. Furthermore, the individual rights to claim of compensation of the appellant were not extinguished by the Claims Agreement and also the right to diplomatic protection of Korea was not abandoned. Thus, the appellant’s rights to claim is valid and the appeal is upheld.

 

Supreme Court

2012.3.24

2009Da68620[13]

1965 Agreement between the Republic of Korea and

Japan Concerning the Settlement of Problems in Regard to Property and Claims and

Economic Cooperation (Article 1, 2).

The appellants were Korean nationals who have filed a suit against the defendant at the Hiroshima District Court of Japan for compensation for the torts committed by the Nippon Steel Corporation such as forced labor and for the outstanding wages. They have argued that their right to claim of compensation has not been extinguished to the Agreement.

The Agreement was rather a political agreement aimed at resolving the financial and civil debt or credit relationship between Korea and Japan based on Article 4 of the San Francisco Peace Treaty. The fact that the economic cooperative funds provided by the Japanese government to the Korean government pursuant to Article 1 of the Claims Agreement does not appear to resolve the issue of rights based on Article 2 nor have a legal compensatory relationship to the same. Furthermore, the individual rights to claim of compensation of the appellant were not extinguished by the Claims Agreement and also the right to diplomatic protection of Korea was not abandoned. Thus, the appellant’s rights to claim is valid and the appeal is upheld.

96

Supreme Court

2012.4.26

2012Du11836

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 2.1, 3.1).

The appellants disputed whether the fiscally transparent entity which is not a person obtaining the income according to the American tax law cannot be seen as the resident of the United States. So the convention cannot be applied to this case.

According to the proper interpretation of the convention, the fiscally transparent entity which is not a person obtaining the income according to the American tax law cannot be seen as the resident of the United States. Only when the person has the duty of tax payment in the U.S., the convention will apply. Since some parts of the original trial’s decision is in error, the appeal is upheld.

97

Supreme Court

2012.6.14

2010Do9067

Convention on Road Traffic (Article 41.2).

The appellant (prosecutor) insisted that his international driver’s license is not valid in Korea according to the convention.

The driver’s license in this case does not meet the required format of the convention and even some important information is not printed on the license. The original trial has failed to review this fact and thus the appeal is upheld.

98

Supreme Court

2013.5.24

2012Du24573

Convention between the Republic of Korea and Japan for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 10.1, 10.2(a), (b)).

The appellant (tax office) challenged the original trial’s decision that the corporate taxation applying the limited tax rate under Article 10.2 (b) is not reasonable.

According to the proper application of the convention, the corporate taxation rate should be decided by Article 10.2(a), not Article 10.2(b). Thus, the original trial’s decision was correct and the appeal is dismissed.

99

Supreme Court

2013.10.24

2011Du22747

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 12.2).

The appellant (claimant) argued that the corporate taxation by the tax office was not reasonable since it was done according to the convention article 12.2 (a), not 12.2(b).

According to the proper interpretation of the convention, the corporate which has been the subject of the taxation cannot be seen as the “corporation” defined in the Article 12.2(b) of the convention. Thus, the original trial’s decision was correct and the appeal is dismissed.

100

Supreme Court

2013.11.28

2009Da79736

Convention between the Republic of Korea and Japan for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 13.2)

The appellant (defendant) argued that the transfer of the issued securities to the newly divided corporate bodies should be seen as the “transfer of stocks”.

Even though it can be seen that the transfer of the issued securities to the newly divided corporate bodies is the “transfer of stocks” according to the interpretation of the convention, the original misjudged the case. Thus, the appeal is upheld.

101

Supreme Court

2013.11.28

2011Da103977

United Nations Convention on Contracts for the International Sale of Goods (Articles 25, 53, 54, 64,1).

The appellant insisted that the vendor cannot cancel the contract if the buyer refused to open the import letter of credit according to the convention.

The refusal of buyer to open the import letter of credit can be seen as the deprivation of the vendor’s legitimate expectation. Thus, the vendor can cancel the contract in this case and the appeal is dismissed.

102

Supreme Court

2014.6.26

2012Du11836

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 3.1).

The appellants disputed whether the fiscally transparent entity which is not a person obtaining the income according to the American tax law cannot be seen as the resident of the United States. So the convention cannot be applied to this case.

According to the proper interpretation of the convention, the fiscally transparent entity which is not a person obtaining the income according to the American tax law cannot be seen as the resident of the United States. Only when the person has the duty of tax payment in the U.S., the convention will apply. Since some parts of the original trial’s decision is in error, the appeal is upheld.

103

Supreme Court

2014.10.2

2013Ma1518

Convention on Maritime Lien and Mortgages 1993 (Article 4.1), Convention on Maritime Lien and Mortgages 1967 (Article 7.1).

The appellants insisted that the convention should be applied prior to Russian domestic law in this case. Also, the appellant argued that the priority right upon a vessel can be recognized in this case according to the convention.

Even though the convention can be applied in prior to Russian domestic law in this case, the priority right upon a vessel of the time charterer cannot be recognized according to the proper interpretation of the convention. Thus, the appeal is dismissed.

104

Supreme Court

2015.5.28

2013Du7704

Convention between the Republic of Korea and Germany for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Articles 1, 3.1, 4.1, 10.2).

The appellant argued that the convention can be applied in this case and the meaning of ‘corporate body’ includes the company in this case.

Since the nationality of the companies in this case is Germany, the convention can be applied. Also, the decision of the original trial to find to which company the income is vested is in error. Thus, the appeal is upheld.

105

Supreme Court

2015.8.19

2014Du40166

Convention between the Republic of Korea and the Netherlands for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 24.1).

The appellant (claimant) challenged the original trial’s interpretation of the meaning of “non-discrimination principle” in the convention.

             

The original trial decided that there has not been any discriminatory treatment since the appellant did not have same situation with the domestic companies. This decision is reasonable and thus the appeal is dismissed. 

106

Supreme Court

2016.3.24

2012Da84004

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Articles 2.1, 5.1).

The appellant (claimant) argued that the written agreement between the parties of the arbitral procedures has been made valid, and so the original trial’s rejection to the enforcement of the arbitral award is not reasonable.   

The foreign arbitral award can be recognized and enforced by the convention when it is consistent with the article 1.1 and there should be a written agreement for this arbitration between the parties. The original trial’s thought that there has not been any written agreement for the arbitral procedures between the claimant and the defendant. However, it turned out that the written agreement has been made valid. This reason for the rejection to the claim is not reasonable, and thus, the appeal is upheld.

107

Supreme Court

2016.3.24

2013Da81514

Convention for the Unification of Certain Rules for International Carriage by Air (Article 1).

The appellant argued that the application of the convention in this case is not reasonable since the destination of the carriage was not the member stated of the convention.

According to the proper interpretation of the convention, both the point of departure and the destination should be in the member states of the convention if the convention can be applied. Thus, the appeal is upheld.

108

Supreme Court

2016.6.10

2014Du39784

Convention between the Republic of Korea and the United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and the Encouragement of International Trade and Investment (Article 13.6).

The appellant argued that the damages for delay due to the delay of monetary debt payment cannot be seen as the ‘interest’ in the convention.

According to the proper interpretation of the convention, the mere damages for delay due to the delay of monetary debt payment cannot be seen as the ‘interest’ in the convention. Thus, the original trial’s decision was in error and the appeal is upheld.

109

Supreme Court

2016.7.14

2015Du2451

Convention between the Republic of Korea and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and Prevention of Fiscal Evasion with respect to Taxes on Income (Article 10.1, 10.2).

The appellant argued that even though the mother company has the nationality of France, the British company in this case should be seen as the beneficial owner according to the convention.

The original trial had an error when deciding whether the British company in this case is the actual beneficial owner or not. Thus, the appeal is upheld.

110

Supreme Court

2016.9.8

2016Du39290

Convention between the Government of the Republic of Korea and the Government of the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital (Article 21.1).

The appellant insisted that the calculation of the income accruing from transfer is inconsistent with the convention. 

When calculating the income accruing from transfer in this case, the tax office has applied Corporate Tax Act enforcement ordinance Article 129.3. Since the transfer of the securities issued by a domestic juridical person has been transferred to the Luxembourg corporate body not having any domestic place of business in Korea, the tax office’s application of this article is correct. Thus, the appeal is dismissed.

 



[1] Only the cases which directly have dealt with the international law (such as treaties, international custom, or general principles of international law) are included in the list. The cases related to Korea’s domestic Nationality Law are not included even though some reference has included these cases as the international law related cases. See In-Sop Jung, “Korea’s Practices on the International Law: Korean Courts’ Decisions related to the International Law”, Seoul International Law Journal, Vol. 18(1), (2011), pp. 255-308.

[2] Dissenting opinions are excluded from the list.

[3] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 189.

[4] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 189.

[5] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 23.

[6] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 119.

[7] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 25.

[8] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 25.

[9] The full name of the agreement is “Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea”.

[10] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), pp. 189-190.

[11] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), p. 24.

[12] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), pp. 101-108.

[13] See Seokwoo Lee & Hee Eun Lee, The Making of International Law in Korea From Colony to Asian Power, (Brill – Nijhoff, 2016), pp. 108-113.

 

INTERNATIONAL LAW IN NORTH EAST ASIA FORUM (ILNEAF)
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