A Study on Research on Legal Issues Related to the Gaeseong Industrial Complex and Direction-Setting
for Future Research
Kim Gwang-Gil(SooRun ASIA Attorneys at law, Attorney)
1. Introduction
North Korea carried out the fourth nuclear test on January 6, 2016 and fired a long-range missile on February 7 of the same year. As a result, on February 10, 2016 the Korean Government announced its decision to completely shut down the Gaeseong Industrial Complex. In response to South Korea’s decision to completely shut down the Gaeseong Industrial Complex, North Korea also announced the expulsion of all South Koreans from the Gaeseong Industrial Complex and the freezing of assets in the Gaeseong Industrial Complex. The Gaeseong Industrial Complex project was completely shut down.
Although the Government has no legal ground for the complete shutdown of the Gaeseong Industrial Complex, it expressed its view that such decision is a political question conducted by the state and therefore, it is constitutional despite the lack of legal ground and is not subject to judicial review.
Approaching inter-Korean relations based on such notion needs to be examined. Thus, this study reviews the constitutionality of the complete shutdown of the Gaeseong Industrial Complex and examines future challenges to institutionalize inter-Korean relations in the future.
2. Complete Shutdown of the Gaeseong Industrial Complex and Political Question Doctrine
A. Political Question Doctrine
The term "political question" refers to an act not subject to the principle of the rule of law in public administration and judicial review due to its high degree of politicality, although it is generally possible to make a legal judgment thereon. In the domestic academic circles, there is a conflict between the positive and negative theories about whether or not to accept the political question doctrine. According to the negative notion, the concept of a political question immune from judicial review cannot be accepted in light of the principle of the rule of law that all functions of the state should be based on and controlled by the constitution and the law. The affirmative notion can be classified into a theory of self-control of the judicial branch which asserts that the judicial branch itself restrains from getting involved in the acts with high degree of politicality; a theory of discretionary acts under which acts of an agency of another state with a high degree of politicality belong to discretionary acts and should be excluded from the judicial review; a theory of division of powers under which involvement of the judicial authority in the matters exclusively belonging to the legislative body or administrative body under the Constitution should not be allowed according to the principle of division of powers; and the theory of inherent limitation which explains that a political question is outside the scope of the judicial power in its nature, because a highly political act is not suitable to be judged by the judicial branch which is independent and does not take political responsibility, but should instead be left to the final judgment by political body, such as the executive branch or the National Assembly, or by the people through elections, etc.
B. Precedents on Political Question
Before the Constitution was amended in 1987, the Supreme Court has not used the expression "political question" in its sentences including No. 1964Cho3 dated July 21, 1964, and generally excluded such act as imposing the martial law from the subjects of judicial review.
After the Constitution was amended in 1987, the Supreme Court has recognized in its sentences including No. 2003Do7878 dated March 26, 2004 and No. 2010Do5986 dated December 16, 2010, the concept of the political question itself which rules out judicial review, but interprets the scope of acts to be recognized as a political question very limitedly.
In its decision No. 1993Hun-Ma186 dated February 29, 1996, the Constitutional Court has dealt with the political question doctrine in its judgment on legal requirements for cases, the adjudication of which was requested on a constitutional complaint. The Constitutional Court ruled that the concept of the so-called political question can be recognized in the sense that it is an act that should be respected because it is based on highly political determination but also that, if such act is directly related to the infringement on fundamental rights of the people, it may be subject to the adjudication of the Constitutional Court. It can be said that the Constitutional Court interprets the political question very limitedly in the sense that the judicial review thereof is to be ruled out.
In its decision No. 2003Hun-Ma814 dated April 29, 2004 regarding the decision on dispatching troops to Iraq, the Constitutional Court ruled that the judicial branch should restrain from making its judgment on a highly political act determined by the President and approved by the National Assembly, if such ruling on the act of the executive branch conforms to the principle of division of powers which is the basic principle of the Constitution, by complying with the procedures prescribed by the Constitution and related Acts in its internal decision-making process, such as deliberation and resolution by a Cabinet meeting, after seeking advice from the National Security Council, and further, after obtaining consent from the legislative branch as prescribed by the Constitution and related Acts. There is criticism against this decision that there is no reason to quote restraint of judicial review of the political question to dismiss this case.1)
C. Court Decision Related to May 24 Measures
On the basis of a series of rulings that denied the obligation to compensate damage under the State Compensation Act for the May 24 measures, there is an opinion that the measures taken to completely shut down Gaeseong Industrial Complex are also constitutional and are not subject to judicial review even if they have no legal ground. However, in the case of the May 24 measures, the part related to the Gaeseong Industrial Complex is different from the measures taken to completely shut down the Gaeseong Industrial Complex in the sense that they do not include the order to shut down the enterprises already existing in the Gaeseong Industrial Complex or to withdraw therefrom but, instead, they are merely the measures to disapprove the entry of new enterprises into the Gaeseong Industrial Complex and the expansion of investment of the enterprises existing therein, and that in the case of the ruling on May 24 measures, there were special circumstances such as that the insurance money for economic cooperation could be received by filing a separate case for claiming insurance money for economic cooperation and that finished products could not be received by postponing the payment of the toll processing cost despite the fact that such cost could be paid prior to the imposition of the May 24 measures. Also, as shown in the Supreme Court sentence No. 2012Da48824 dated March 26, 2015, the fact that the State has no obligation to compensate damage caused by the May 24 measures under the Sate Compensation Act does not necessarily mean that the May 24 measures are legal, and it cannot be assured that the possibility of relief through other judicial means such as filing an administrative litigation or constitutional complaint is blocked.
D. Application to the Measures Taken to Completely Shut down the Gaeseong Industrial Complex A South-North Korean summit meeting itself, which seems to be recognized by the Supreme Court as a political question, is a pure political act from the outset, and is a matter of political responsibility but not a matter to bring to the judicial branch to decide whether it violates law
1) Jeong Yeon-ju, Judicial Review of Political Question. the Justice, Vol. 95, p43, Dec. 2006
or infringes on the fundamental rights of the people. Therefore, the South-North Korean summit meeting may have the possibility to infringe on the property right which is a fundamental right of the people and has a character totally different from that of the measures taken to completely shut down the Gaeseong Industrial Complex without any legal ground despite the fact that such measures could have been enforced legitimately by exercising national emergency right under the Constitution.
Although the Constitutional Court recognizes the President's act of dispatching troops to Iraq as a political question, the intent of the Constitutional Court seems to be not to rule out the judicial review even on the President's political decision on the diplomatic and security issues exercised without observing the procedures prescribed by the Constitution and the relevant Acts.
Therefore, such decision cannot serve as a ground for the Government to waive, at its own discretion, the right to conduct judicial review of the measures taken to completely shut down the Gaeseong Industrial Complex without any legal ground, and without observing any legitimate procedures.
The measures taken to completely shut down the Gaeseong Industrial Complex restricts the exercise of property rights of the enterprises in the Gaeseong Industrial Complex, and the restriction on the property rights of the people shall be possible only by an Act (Article 23 (3) of the Constitution) but may be possible as an exception by exercising the national emergency right. However, the Government has asserted, without any legal ground, that the measures for the complete shutdown of the Gaeseong Industrial Complex was decided on the basis of a high degree of political judgment in the state of national emergency, but such assertion seems not to be based on the national emergency right under the Constitution but rather on the national emergency right beyond the Constitution. However, if we review our constitutional history, as seen in the emergency measures under Article 53 of the Yushin Constitution of 19722), the emergency measures under Article 51 of the Constitution of 1980 (the Constitution of the Fifth Republic3), the right to take emergency financial and economic actions and issue orders therefor, and the right of emergency order under Article 76 of the current Constitution4), the national emergency right has developed in the direction to clarify the contents and effect, and the control and limitations, of the state emergency right to prevent abuse and misapplication thereof. As seen in the above, in view of our constitutional history that has amended the Constitution in the direction to clarify the contents and effect, and the control and limitations, of the state emergency right to prevent abuse and misapplication thereof, the exercise of the national emergency right beyond the Constitution without any legal ground under the pretext of the
2) The Constitution of the Republic of Korea, No. 8 (Wholly Amended on Dec. 27, 1972; Enforcement Date: Dec. 27, 1972) 3) The Constitution of the Republic of Korea, No. 9 (Wholly Amended on Oct. 27, 1980; Enforcement Date: Oct. 27, 1980) 4) The Constitution of the Republic of Korea, No. 10 (Wholly Amended on Oct. 29, 1987 Enforcement Date: Feb. 25, 1988)
political question is judged as unacceptable because it reverses the development process of the constitutional history and thus cannot be recognized. The intent of the Constitutional Court's decision No. 2014Hun-Ga5 dated March 26, 2015 is also the same.
3. Diplomatic and Security Policy and Political Question
Diplomatic and security issues, including inter-Korean relations, are related to very important policies that might determine the fate of the State, and they are subjected to a great deal of policy discretion. Furthermore, there may be a concern about whether the application of the principle of the rule of law in its entirety is desirable when not only the domestic interests but also the interests of third-party countries are involved. There have been quite a number of practices that have made policy decisions on diplomatic and security issues not based on the Constitution and Acts under the pretext of the political question. Regarding the issues that have arisen between the South and North Koreas, acts not based on the Constitution and the Acts have been accepted under the pretext of the political question. Even the Acts that should provide the ground for deciding diplomatic and security policies are not sufficiently enacted. At present, even after 70 years from the liberation of Korea, there is no Act even on the procedures for concluding treaties.
The tendency to assert that the President's decision on a diplomatic and security issue is a political question seems to be in line with the fact that the courts have long been consistent in judicial restraint in the management of administrative litigation in the history of the Korean judicial system. However, at the present time after 70 years from the establishment of the Republic of Korea's judicial system and after the lapse of more than 30 years from the revision of the Constitution in 1987, it is necessary to examine whether the application of the rule of law should indeed be excluded from the diplomatic and security issues including the issues between the two Koreas under the pretext of the political question.
The Constitution can bind all political power in the field of diplomacy, too. This principle is the essence of the order of a law-abiding country established by the constitution. In the case of acts with high degree of politicality, various political and public interests may be taken into account in the scope, extent, and the result of the judicial review depending on the case, but the act itself should not be excluded from the subject of the judicial review from the beginning for such reason. In Germany, too, the Federal Constitutional Court emphasizes, in a precedent concerning the Basic Treaty between East and West Germany, that the principle of judicial restraint from political issues does not mean the reduction or weakening of the right of judicial review of the Federal Constitutional Court at all but the fact that a state action which gets out of procedures for judicial review of the Federal Constitutional Court is in violation of the determination of the constitution that guarantees the comprehensive constitutional trial system.5)
Judicial review of the decision on a diplomatic and security policy can be divided into the part of the decision process, such as the consent of the National Assembly, and the part of substantive requirements, such as whether the decision infringes on the fundamental rights of the people such as property rights; and, in principle, the rule of law of the Constitution should apply to both of these parts. It is judged that the decision on a diplomatic and security policy that does not comply with procedures at the very least explicitly prescribed by the Constitution, such as obtaining consent of the National Assembly, cannot be construed as constitutional under the pretext of the political question, because it clearly violates the Constitution.
First of all, to prevent splits in national opinion, it is necessary to make decisions complying with constitutional procedures. National unity is necessary to protect the national interests for the national security and diplomacy; but under our constitutional system, a State's decision made ignoring the procedures prescribed by the Constitution and related Acts can never unify the people. True unity can be achieved when the will of the people is expressed through the procedures prescribed by the Constitution and the State's decision is made after converging such will. In foreign relations, opposition to government policy can result in the increase of national interests. Often, the ruling party requests bipartisan cooperation from the opposition party in diplomatic and security issues. Its real intention is to make the opposition party to follow the direction intended by the government and the ruling party, but this is not really a bipartisan cooperation. If the national interests can be increased, opposition parties should oppose and prevent the government and the ruling party from being pulled or swayed by the other country.
If our domestic public opinion is known to be unfavorable, a foreign country called an ally would not be able to pursue its interests only. The active application of the rule of law in diplomatic and security policies would widen our government's room in dealing with foreign countries. The rule of law can be our weapon for diplomatic security.
Respect for the order of the rule of law is also important in relations with North Korea. In order to resist North Korea's attempt for internal division inside South Korea, it is necessary for the people to express their will through the procedures prescribed by the Constitution and to make national decisions based on their converged will. Unification will only be possible when even opinions advocating North Korea's position are publicly discussed and overcome within the realm of liberal democracy and the rule of law. Denying the political question and explicitly applying the rule of law in diplomatic and security issues will show North Korea a good example of the rule of law at work in the Republic of Korea. When the Republic of Korea itself sets an example of the rule of law, the demand for the rule of law in North Korea will gain greater traction, and the day of peaceful reunification based on the basic order of liberal democracy will be advanced.
5) The Board of National Unification, Precedents concerning the Basic Treaty between East and West Germany, 1976, p595
In the case of a diplomatic and security affair with a high degree of politicality, if the Constitutional Court invalidates it on unconstitutionality grounds, concerns may arise about ill-effects such as damage to trust of the relevant foreign country. Even in such cases, the case should not be dismissed by excluding it from the subject of a judicial review but a review should be conducted at first; and, if there is a possibility of arising concerns about the trust between the countries, the case may be adjudged as unconstitutional but, in such cases, it may be considered to make a modified adjudgment such as decision on constitutional nonconformity or decision to demand legislation instead of a simple unconstitutionality.6) In the case of a request for adjudication on a constitutional complaint on the decision on a diplomatic and security policy, a decision of unconstitutionality on the exercise of governmental authority may be made instead of a decision to cancel the exercise of governmental authority.
4. Institutionalization of Inter-Korean Relations
A. Institutionalization of Procedures for Sanctions against North Korea and Compensation for Damage of Gaeseong Industrial Complex
It is against the rule of law, which is the basic principle of the Constitution, that sanctions against North Korea, such as a complete shutdown of the Gaeseong Industrial Complex, are carried out without any legal ground. Also, invoking the national emergency right prescribed in the Constitution every time sanctions are imposed against North Korea does not conform to the purpose of the national emergency right that should be invoked exceptionally at the time when the State is in the state of national emergency. In order to solve this problem, it is necessary to stipulate in detail the requirements and procedures for suspending cooperative projects in the Inter-Korean Exchange and Cooperation Act (hereinafter referred to as the "Exchange and Cooperative Act"), because projects, such as Gaeseong Industrial Complex project which has been shut down, are implemented after obtaining approval of cooperative projects7) under the Exchange and Cooperative Act.
The current Exchange and Cooperation Act is a discretionary act for which no substantive requirements are specified regarding approval for visit (Article 9 of the Act), approval for taking out or bringing in goods, etc. (Article 13 of the Act), and approval for cooperative projects (Article 17 of the Act). It is particularly problematic when the visit or taking out or bringing in goods, etc. is disapproved (which can be done at discretion) for already-approved cooperative projects because it leads to the same results as canceling the approval of the cooperative projects or adjusting the cooperative projects. Prohibiting people who obtained approval for cooperative projects from actually performing those projects by restricting transportation of goods
6) Jeong Yeon-ju, Judicial Review of Political Question, the Justice, Vol. 95, p34, Dec. 2006
7) "Cooperative project" means all activities jointly carried out by residents of South and North Korea (including juristic persons and organizations) with respect to culture, tourism, health and medical services, sports, art, economy, etc. (subparagraph 4 of Article 2 of the Exchange and Cooperation Act)
falls under the restriction of exercise of property rights from public necessity prescribed in Article 23 of the Constitution, and, thus, it is necessary to strictly restrict such act. Therefore, in order to restrict the disapproval of visit or disapproval of taking out or bringing in goods, etc., except for cases where there is a reason attributable to the relevant person, and for cases where the purpose of visit is to perform cooperative projects already approved, it is necessary to add new provisions to Article 9 (4) of the Act such as “the Minister of Unification may choose to refuse approval of visit only in cases falling under any reason prescribed in subparagraphs of paragraph (7) if the purpose of such visit is to perform cooperative projects approved pursuant to Article 17”; and also, new provisions to Article 13 (4) of the Act such as “the Minister of Unification may choose to refuse to approve taking out or bringing in goods, etc. only in cases falling under any reason prescribed in subparagraphs of paragraph (5) if the purpose of such taking out or bringing in goods, etc. is to perform cooperative projects approved pursuant to Article 17.”
Even in cases where strict restrictions are imposed on restricting visits and taking out or bringing in goods, etc., the purpose of which is to perform a cooperation project already approved, it may be necessary to adjust the scope of a cooperative project already approved or cancel the cooperative project itself. In order to enforce the sanctions imposed by the United Nations against North Korea, it is necessary to adjust or cancel the cooperative projects already approved even if there is no reason attributable to the relevant persons. And, in such cases, it is necessary to guarantee the investment stability by prescribing applicable provisions for the State to compensate the loss of a cooperative project suspended without reason attributable to the investor. Article 23 (3) of the Constitution stipulates that "expropriation, use or restriction of private property from public necessity and compensation therefor shall be governed by Act:
Provided, That, in such a case, just compensation shall be paid." Therefore, it is necessary to enact an Act that provides grounds for just compensation of loss caused by restriction on use of property rights due to the suspension or abandonment of cooperative projects.
Such compensation can be justified in light of the provisions of Articles 19 and 21 of the Requisition Act which stipulate that, even in cases where the land, materials, facilities or rights are requisitioned in order to perform military operations in time of war, armed conflict or similar national emergency, compensation should be made based on the "market value", in principle, and the current Martial Law Act which prescribes in Article 9-2 that due compensation should be paid also in cases where the martial law commander destroys or incinerates the property of a citizen in the area of emergency martial law when it is inevitable for military operations unless the loss has been caused amid a battle. Therefore, it is necessary to consider inserting new provisions in Article 18 (5) of the Exchange and Cooperation Act, stating "any person who has suffered a loss caused by the adjustment due to a reason prescribed in paragraph (1) 1 or 2 may claim due compensation from the Minister of Unification. The scope of and procedures for compensation shall be prescribed by Presidential Decree."
In addition, in order to collect democratic opinions on the procedures for terminating cooperative projects, it seems necessary to consider inserting a new provision in the former part of Article 18 (4) of the Act, stating "the Minister of Unification shall hold a hearing to order the adjustment of a cooperative project pursuant to paragraph (1)."
B. Institutionalization of South-North Korean Agreements and Normalization of Gaeseong Industrial Complex
(1) Institutionalization of South-North Korean Agreements and Normalization of the Gaeseong Industrial Complex
Also in inter-Korean relations, it is necessary to decide matters related to inter-Korean relations within the framework of the legal system including the Constitution by getting rid of the unconstitutional assertion that policies can be decided without any legal control. That is also a necessary principle in adopting and effectuating inter-Korean agreements. The institutionalization of South-North Korean agreements generally implies that the agreements concluded between South and North Korea shall be made to take their legal effects after obtaining consent from the National Assembly, but such implication is rather ambiguous. It is doubtful whether a citizen can file a claim directly with the court against the Government on any right or on the suspension or cessation of the effect of the domestic law based on an South-North Korean agreement, as with the domestic law. If not, a question may arise on whether the binding power of South-North Korean agreements can only be recognized between South and North Korea and the people are unable to file a claim directly with the court against the State on the effect of the South-North Korean agreement.
(2) Effect of South-North Korean Agreements
The Development of Inter-Korean Relations Act was promulgated on December 29, 2005 and entered into force on June 30, 2006. This Act does not have such provisions as "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" as prescribed in Article 6 (1) of the Constitution. It seems to be reasonable to interpret the lack of provision on the domestic legal effect of South-North Korean agreements in the Development of Inter-Korean Relations Act as there being no domestic legal effect granted to South-North Korean agreements. However, instead, only the external effect in inter-Korean relations would be recognized pursuant to Article 23 (1) of the same Act. Thus, South-North Korean agreements have no domestic effect but are legally binding on inter-Korean relations only, and the President is entitled to suspend all or part of the effect of the South-North Korean agreements if circumstances change. It is prescribed that the suspension of the effect of a South-North Korean agreement which has been concluded and ratified by the National Assembly among them, requires the consent of the National Assembly for the President's flexible response to changes in inter-Korean relations; and in addition, it is prescribed that in order to suspend the effect of a South-North Korean agreement which has obtained consent from the National Assembly, it is necessary to obtain consent from the National Assembly in the sense that such agreement is endowed with more external legal binding force.
In this interpretation, it seems that a South-North Korean agreement means a written agreement between South and the North Korea, the relations of which are "not relations between nations but "special relations established temporarily in the course of pursuing unification"8) and refers to a document concluded and taking its effect under the Development of Inter-Korean Relations Act. The view that South-North Korean agreements are not recognized as having domestic legal effect is consequentially similar to the conclusion of the position of dualism that a separate domestic legislative procedure is necessary to grant domestic legal force to a treaty, in relations between international law and domestic law.9) Even in such a view, granting domestic legal effect to South-North Korean agreements is not entirely ruled out. In order to grant domestic legal force to South-North Korean agreements, it seems to be feasible to make legislation for granting domestic legal force to an individual South-North Korean agreement simultaneously with taking procedures for obtaining consent from the National Assembly.
(3) Measures for Institutionalizing Existing South-North Korean Agreements
The two Koreas have entered into a number of agreements since the signing of the July 4 South-North Joint Communique in 1972. However, among the South-North Korean agreements concluded prior to the enforcement date of the Development of Inter-Korea Relations Act, declarations made by two inter-Korean summits, such as the July 4 South-North Joint Communique adopted in 1972, the June 15 Joint Declaration adopted in 2000, and the October 4 Declaration adopted in 2007, have not obtained consent of the National Assembly, and, thus, it can be pointed out that they may have no legal binding force. In this regard, there may be various opinions, such as the one asserting to take procedures for obtaining consent from the National Assembly to the July 4 South-North Joint Communique adopted in 1972, the June 15 Joint Declaration adopted in 2000, and the October 4 Declaration adopted in 2007, the one asserting to make a written agreement again between the South and North Korea on the essence of such agreements and take procedures for obtaining consent from the National Assembly to such written agreement, and the one asserting that, as said agreements are not detailed implementation agreements, it is important to respect the spirit thereof, and therefore it is just sufficient to declare our respect for such agreements in the provisions on the purpose, etc. of the Development of Inter-Korean Relations Act. Any opinion can be evaluated as positive in the sense that it tries to give binding force to South-North Korean agreements; and, in cases of the South-North Korean agreements to be concluded in the future, it will be necessary to follow the procedures for concluding an agreement under the Development of Inter-Korean Relations Act depending on its type.
8) Article 3 (1) of the Development of Inter-Korean Relations Act
9) In interpreting our Constitution which takes the unionism under which a treaty enters into the domestic law automatically if it is concluded or promulgated, it seems that the practical signification of the domestic legal effect of a treaty is also still under debate. There is a precedent that ordinance of a local council which violates the WTO Agreement is null and void (Sep. 7, 2005 Supreme Court Sentence No. 2004Chu10 Decision), and there is also a precedent quoting that "a private individual is ineligible to file a lawsuit directly with a domestic court against the government of a member state of the WTO:
Agreement to seek cancellation of a disposition only for reason that a disposition of imposition of an anti-dumping tariff is a violation of the WTO Agreement or claim that the abovementioned violation of the WTO Agreement is an independent ground for cancelling the disposition (Jan. 30, 2009, Supreme Court Sentence NO. 2008Du17936 Decision).
(4) Institutionalization of South-North Korean Agreements and Procedures for Normalization of Gaeseong Industrial Complex
In order to normalize the Gaeseong Industrial Complex, various factors such as the support of the South Korean public opinion, international support and North Korea's positive response should be fulfilled. The full-scale consultation on the resumption of the operation of the Gaeseong Industrial Complex will be decided in consideration of the initiation of dialogue for resolving the nuclear issue and North Korea's demands, etc., and it will be necessary to obtain cooperation and support from the international community on the Gaeseong Industrial Complex project. In order to obtain international support for the Gaeseong Industrial Complex, various supplementary measures such as the need to induce North Korea's change through the Gaeseong Industrial Complex project, preparation of the preventive measures against unilateral operation of the Gaeseong Industrial Complex by North Korea, and the reduction of structural instability of Gaeseong Industrial Complex through internationalization of the Gaeseong Industrial Complex, etc. will be needed. Instead of examining each of these factors in detail, the signing of a South-North Korean agreement and the procedures for entering into said agreement to normalize the Gaeseong Industrial Complex are examined as follows. According to the political question doctrine, a decision for the normalization of the Gaeseong Industrial Complex may be made without any particular legal ground, but this approach will not only lead to internal division but also is undesirable for stabilizing the Gaeseong Industrial Complex in the future.
If it becomes possible to enter into a South-North Korean agreement to normalize the Gaeseong Industrial Complex, helped by the ripening of the situation favorable for normalization of the Gaeseong complex, it is highly possible that the agreement will include projects requiring financing such as construction of interchanges for Gaeseong-Pyeongyang highway for commuting of workers, construction of accommodation facilities for workers, and construction of nurseries in the Gaeseong Industrial Complex, to supplement and develop the Gaeseong Industrial Complex beyond the mere resumption of the operation thereof. If a South-North Korean agreement for normalizing the Gaeseong Industrial Complex is concluded beyond the mere resumption of the operation, it falls under "an agreement subject to consent from the National Assembly" under Article 21 (3) of the Development of Inter-Korean Relations Act and should undergo the procedures for obtaining consent from the National Assembly. The procedures for obtaining consent from the National Assembly under Article 21 (3) of the said Act may function to control unreasonable demands of North Korea and may also function positively in giving explanations to and obtaining understanding from the international community including the United States. In addition, because the South-North Korean agreement that obtains consent from the National Assembly will require the consent of the National Assembly again if it is intended to suspend its effect pursuant to Article 23 (3) of the Development of Inter-Korean Relations Act, the resumption of the operation of the Gaeseong Industrial Complex with the consent of the National Assembly will contribute to enhancing the stability of the Gaeseong Industrial Complex.
In fact, regarding the characteristics of South-North Korean agreements, it cannot be said that there is no conflict between the keeping of confidentiality of the South-North Korean agreements in their concluding process and national consensus or democratic control over them.
In the case of an ordinary treaty, too, it is a common practice that its concluding process is not open to the public because of the concern that it may become more difficult to draw a final compromise at the slightest slip by invoking bad emotions or self-respect if the details of the negotiations are disclosed to the general public.10) In cases of South-North Korean agreements, the necessity for non-disclosure of their concluding process seems to be greater than ordinary treaties if we take into account the special nature of the inter-Korean relations that still maintain the features of hostile relations. However, because of the special nature of the South-North relations, it is much more necessary to reach national consensus to implement the South-North Korean agreements. For this national consensus, it is necessary to disclose not only the results of South-North Korean agreements but also the process of concluding them to a certain degree.
If disclosure to the general public is not practically feasible, it is recommended to closely consult with the National Assembly, which is the representative body of the people, at least in the process of concluding South-North Korean agreements, to prevent unnecessary disputes and to promote the stable development of inter-Korean relations.
5. Future Direction of Research on Legal Issues Related to the Gaeseong Industrial Complex
The possibility that the Korean peninsula, which was placed at the brink of war, can move toward reconciliation and peace is being opened taking the opportunity of the 2018 PyeongChang Olympic Games. The summit meeting between South and North Korea held in April 2018, the subsequent summit meeting between North Korean and the United States, and a series of following summit meetings expected to be held with neighboring countries will serve as an opportunity to overcome the crisis of war in the Korean Peninsula and to enhance the possibility of peace in South and North Korea, and Northeast Asia. Of course, there is a disagreement requiring adjustment between the complete, verifiable, irreversible nuclear dismantlement (CVID) demanded by the Republic of Korea and the United States and the stepwise simultaneous action demanded by North Korea, and the declaration of the ceasefire and conclusion of a peace treaty may not proceed only in the smooth manner. Despite various difficulties, international cooperation for economic development of North Korea will be initiated if South and North Korea and other parties successfully agree on and implement the denuclearization, peace regime, and diplomatic relations between North Korea and the United States. Such circumstances will accelerate the
10) Contrary to this view, there was a rebuttal that considering the enormous influence of a treaty on the people's lives, it needs to strengthen democratic control and to disclose specific information on the negotiation process of a treaty; and the time when such conflict of opinions was exposed was when the disclosure of the negotiation process of the Korea-U.S.A.
FTA became an issue.
realization of the concept of the Moon Jae-in government on the new economic map of the Korean peninsula and also realize the resumption and normalization of the Gaeseong Industrial Complex project, which is the representative inter-Korean economic cooperation project.
In order to resume the operation of the Gaeseong Industrial Complex, it is necessary to overcome the existing limits of the Gaeseong Industrial Complex and establish a developmental model. It is necessary to devise measures to overcome the problems that arose when the existing Gaeseong Industrial Complex were in operation and to establish a developmental model beyond the mere resumption of operation of the Gaeseong Industrial Complex. It is also necessary to supplement laws of the South and North Korea, and South-North Korean agreements. For such purpose, it is necessary to identify the problems that arose when the existing Gaeseong Industrial Complex was in operation by analyzing the problems exposed during its operation, such as the access thereto, tax accounting, labor, and dispute resolution.
Under the possibility of normalization of the Gaeseong Industrial Complex, it is necessary to study the laws of South and North Korea, measures to modify South-North Korean agreements and measures to enhance the normative force of the laws of South and North Korea, and South-North Korean agreements. Not only the interviews with persons related to the enterprises located in the Gaeseong Industrial Complex and the relevant experts but also the examination of North Korea's Rasun Economic Trade Zone Act, etc. and cases of foreign countries including China are needed.
Such studies will help realizing "90. Concept of New Economic Map of the Korean Peninsula and Realization of Economic Unification" among the top 100 policy tasks specified in the "The Five-Year Policy for the Moon Jae-in Administration of State Affairs." As negotiations with North Korea will be held for the resumption of operation of the Gaeseong Industrial Complex, this study is expected to be able to contribute to the institutionalization of inter-Korean relations by being utilized in negotiating with North Korea and in amending the laws of South and North Korea, and South-North Korean agreements.