북한의 국내법적 지위와 북한인권법의 법적 기능 (A Legal Position of North Korea in the Domestic Legal System and Legal Function of the North Korean Human Rights Act)

서지정보

· 발행기관 : 한국토지공법학회
· 수록지 정보 : 토지공법연구 / 79권 / 815 ~ 837페이지
· 저자명 : 최용전

초록

북한은 1981년 9월 14일 A규약과 B규약을 유보없이 가입하였으며, 우리나라도 가입하여 1990년부터 발효되었으며, UN에도 남북한이 동시에 가입하였다. 남한과 북한이 모두 국제인권규약에 가입함으로써 남북한 모두 인권규약에 규정된 기본적 인권을 보장해야할 국제적 의무를 부담하며, 상호간에 상대방에게 위 조약의 준수를 촉구할 권리를 가지고 있음에도 불구하고, 우리는 각종 매체를 통하여 북한동포들이 심각하게 인권유린을 당하고 있다는 사실을 인지하고 있으며, 이에 대하여 적절한 대응책 마련이 부족하였다. 그러나, 다행히 2016년에 북한인권법이 제정됨으로써 북한지역에 거주하고 있는 우리 국민인 북한주민의 인권을 보호할 수 있는 법률이 마련되었다. 동법을 시행하기 위한 준비가 진행 중인 이 즈음에, 우리 대한민국헌법에 근거한 북한의 법적 지위를 바탕으로 동법의 법적 기능과 과제를 검토해보는 것이 북한주민의 기본적 인권의 보호･증진에 좋은 계기가 되리라고 본다.
따라서 북한의 법적 지위를 헌법, 법률 및 판례를 통하여 고찰하고, 북한인권법의 제정배경과 주요내용을 고찰하면서, 북한인권법이 갖는 법적 기능과 과제를 검토해보고자 한다.

영어초록

Ⅰ. Introcuction

On September 14 1981, North Korea joined codes A and B without reservations. The two Koreas joined the United Nations at the 46th UN General Assembly in 1991. Therefore, both South and North Korea bear international obligations to guarantee the basic human rights stipulated in the International Covenant and have the right to demand each other to adhere to the International Covenant.
However, the fact that North Korean citizens are subjected to severe human rights violations has been well documented. The testimony of North Korean refugees and the reports of international human rights groups shows the unbelievable atrocities committed by the North Korean regime. They seem incredible when first encountered.
In Korea, the only country on the Korean Peninsula, the constitution has been enacted since 1948 and the territory south of the Military Demarcation Line and the 38th parallel is the territory of The Republic of Korea(ROK). The ROK is unable to take effective measures against human rights violations in North Korea. In other words, there is validity but there is no effectiveness.
It is a dominant view that the North Korean region is legally a territory of South Korea but as it is in fact ruled by the illegal North Korean government, South Korea's laws are ineffective. On the other hand, as South and North Korea concluded the South-North Agreements in 1991 to realize the principle of peaceful unification, the ROK seems to recognize North Korea as a sovereign nation in international law.
Despite these changes in the international environment, the human rights situation in North Korea has not been improved. However, the North Korean Human Rights Act was recently enacted and has been laid out to protect the human rights of people living in North Korea.
Therefore, it is necessary to examine measures to improve the human rights of North Korean residents by studying the legal functions of the North Korean Human Rights Act with respect to the domestic legal status of North Korea.


Ⅱ. North Korea’s Domestic Legal Status

Article 3 of the Constitution of the Republic of Korea stipulates the territory of Korea as 'the Korean peninsula and its adjacent is lands'. Thus, the territory of the Republic of Korea refers to the entire peninsula, including the present territory of North Korea and its adjacent islands. Since the first constitution was drafted by Dr. Yoo Jinoo, the territory of North Korea has been prescriptively confirmed as the territory of the Republic of Korea. This interpretation aligns with the intentions of this regulation, and therefore implies that North Korea is a ‘puppet state’ that illegally occupies the territory of the Republic of Korea and must be considered an ‘anti-state organization’.
According to the domestic theories of legal status of North Korea, there are many theories such as 'illegal organization theory of North Korea' mentioned above, 'theory of ends and means' as Article 3 and 4 respectively, 'political declaration theory' regarding the effect of territory clause as a political declaration', 'theory of changes of Constitution' that viewed the essential meaning of territory clause as lost by the joint communique of 4 July 1972 betweent he South and the North of Korea, simultaneous joining UN by the South and the North of Korea(1991) and effectivation of Inter-Korea Basic Agreement(1992), and 'priority of unification clause' which restricts the territory clause by giving priority to peaceful unification clause of Article 4 interms of general act and special act, new and old law of territory clause and peaceful unification clause, but all of these theories didn't recognize the sovereignty of North Korea. The Constitutional Court of Korea saw the simultaneous joining UN by the South and North of Korea as dualistic and such a dualism as internal special relationship in real area not as equal sovereign state.
Therefore, the effect of the Constitution of the Republic of Korea covers the North Korea as the regulative binding force of the North Korea as a part of the territory of Korea and the legal status of North Korea as anti-government organization, a puppet group or illegal government is still valid.


Ⅲ. Legal Function and legal issue of the North Korean Human Rights Act

Regarding North Korea as a spatial area covered by sovereignty of South Korea, the domestic law of South Korea affects North Korea. The residents of North Korea are subject to the Nationality Law of the Republic of Korea, acquires the nationality of the Republic of Korea at birth and if they are under the control of sovereignty of the Republic of Korea released from the detainment of illegal government, they will be issued identification care of the Republic of Korea by the effect of Nationality Law and their intellectual property will be also protected by domestic law of Korea.
While North Korea belongs to anti-government organization by National Security Law, Inter-Korean Exchange and Cooperation Act and Development of Inter-Korean Relations Act regard North Korea as the object of exchange and cooperation. National Security Law and Inter-Korean Exchange and Cooperation Act have different legal purposes and regulatory objects, but contribute to the development of inter-Korean relations and the maintenance of peaceful relations and should not be ranked through the principle of the new law priority.
As North Korea has not given an obvious sign that it totally gave up the line of unification under communism to overthrow the liberal democracy of South Korea and it has not shown any internal democratic changes, it should be considered that North Korea is both a partner of dialog and cooperation for the peaceful unification and anti-government organization to overthrow the liberal democracy of Korea with the political line of unification under communism. Although Inter-Korean Summit Conference was held and inter-Korean exchange and cooperation was made, it should be not judged that anti-government organization policy of North Korea disappeared or regulatory power of National Security Law designed to ensure the national safety and survival and liberty by regulating anti-government acts was lost.
North Korean Human Rights Act is the law for the purpose of actual protection and promotion of human rights for North Koreans by arranging various institutions and devices to protect their basic rights for liberty and survival because they are not guaranteed basic human rights and also threatened seriously in terms of health and life due to the lack of economic resources for food and medicine and medical supplies.
North Korean Human Rights Act has independent legal system for ensuring North Korean human rights and complements a defect in Inter-Korean Exchange and Cooperation Act and Development of Inter-Korean Relations Act. North Korean Human Rights Act doesn't make a direct judgement about whether North Korea is anti-government organization or illegal government and sets necessary items for the protection of general human rights. Since it has different legal purposes from National Security Law, there is little possibility of conflict and is the unification-oriented law with Inter-Korean Exchange and Cooperation Act and Development of Inter-Korean Relations Act since the end of the cold war system.
Therefore, there has been a contradiction that the domestic laws have not actual effects due to the illegal occupancy of North Korea regime, but the enaction of North Korean Human Rights Act was a chance to have an actual effects. It also means that legal and institutional strategy to ensure basic rights that the Constitution of the Republic of Korea grants the North Koreans was systematized. The enaction and effectivation of North Korean Human Rights Act had a system to ensure the establishment and enforcement of general and systematic human rights policy of North Korea and further ensured consistency to develop policies for the security of human rights of North Koreans without a great influence of changes of international situation and strained relations between the South and the North of Korea. Thus, although the claim that the spatial area covered by the sovereignty of the Republic of Korea is 'the Korean Peninsula and Islands annexed' was merely uncompleted expression, it might have the effect of strengthening actual effects of Constitution by promoting North Korean human rights through conversation with North Korea and humanitarian supports based on the optimum operation of North Korean Human Rights Act.


Ⅳ. Conclusion

As North Korean Human Rights Act provided the fodder for having legal effects of the Republic of Korea on the regions of North Korea, it played a great role in developing the actual effects of territory clause prescribed in Article 3 of Constitution of the Republic of Korea. But, since North Korean Human Rights Act may be an obstacle rather than a foothold for South-North relations, humanitarian support and the South-North dialogue that the North Korean regime can accept should be induced. Most suitable subjects and ranges should be decided on the basis of accurate demand survey so that the South-North dialog and humanitarian support by North Korean Human Rights Act can be a practical aid in promoting human rights of North Koreans.

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