[19-2 KCCR 26, 2005 Hun-Ra 8, July 26, 2007]

In this case, the Constitutional Court dismissed the competence dispute claim by reason that 'third party suit' is not allowed and the authority of discussion and voting of Congressman cannot be intruded by national agencies including the President except for National Assembly.

Background of the Case

1.The Korean Administration came to adopt 'Partial Revision Bill of Agreement Table by Korean Government' after the rice negotiation with WTO member states in 2004 in order to postpone the moratorium levying customs on rice. During that process, the Administration wrote the agreement in this case which partially accepted the demands from the countries of gain and loss such as United States, India and Egypt at the cost of postponing the moratorium levying customs on rice.

2.As the Administration had tried to get the consent from National Assembly only for the above 'Revision Bill of Agreement Table' except for the written agreement in this case, the plaintiffs who were Congressmen brought this competence dispute suit against the President claiming that he intruded upon the consenting rights of the National Assembly to the conclusion and ratification of treaties and the paintiffs' authority to discuss and vote on the treaty bills by concluding and ratifying the written agreement in this case without the consent of National Assembly.

Summary of the Opinions

The majority opinion of the Court supported by 7 Justices dismissed the case based on the following reasons.

1. Summary of the Majority Opinion by 7 Justices

A.If a decision of National Assembly was made by majority vote and nevertheless the minority group of Congressmen who were against the

majority's will could bring competence dispute suit, it is against the nature of majority rule and parliamentarism. In addition, it would be an overuse of judicial power to resolve all kinds of political disputes by judicial means instead of making efforts to decide the will of the organization through discussions and conversations under democratic procedures in the organization. Under current legal systems without express legal provisions allowing 'third party suit' in which a part of a national organization can assert something belonging to the competence of the national organization in the name of the part, Congressmen, members of National Assembly, cannot bring competence dispute suit in which they allege the intrusion of consenting power of National Assembly on the conclusion and ratification of treaties.

B.The authority to discuss and vote of Congressmen can be exercised and intruded not in the external relationships with other national organizations but only in the internal relations of National Assembly. Hence, the direct legal relationships could be taken place only internally in National Assembly - for example, between Congressmen or between Congressman and the Speaker - not with other national organizations outside of National Assembly. For this reason, although the President, defendant, concluded and ratified a treaty without the consent of National Assembly, there is no possibility that it intruded upon the right to discuss and vote of the plaintiffs, Congressmen.

C.(Concurring Opinion of One Justice) Regarding the written agreement not as a binding treaty in the Constitution but a gentlemen's agreement based on the faith of the countries concerned would be reasonable considering the fact that the written agreement in this case has not gone through the domestic procedures for the conclusion of treaty which made the treaty take effect, that the written agreement was concluded in different name and form with general treaties, and that the written agreement was made based on the faith for a smooth conclusion of 'Revision Bill of Agreement Table' in this case. This suit cannot help being dismissed in that there is no object of the suit because it was on the false assumption that the written agreement was a treaty.

2. Summary of the Dissenting Opinion of One Justice

A.Although the constitutional competence of National Assembly has intruded or gotten into the danger of being intruded by the executive because the executive and the legislature came to be under the control of majority party, the majority in National Assembly or the majority in a specific bill has not held in checks including competence dispute suit in order to protect the competence of National Assembly. This made the situation where the constitutional competence of National Assembly cannot be protected well and the constitutional order of separation of powers is distorted. Under this situation, we need to admit that the minority of Congressmen has legal status to challenge against the competence intrusion of National Assembly on behalf of it so that we might finally protect the constitutional competence of National Assembly through protecting their authority. As a concrete scheme for that, we need to admit 'third party suit.'

B.'Third party suit' in the competence dispute suit like this case should admit at least a negotiation body or a group of Congressmen which have equivalent substantiality with a negotiation body to the legal status to bring competence dispute suit.

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