2020년 국제법 중요판례평석

초록

Two cases on extradition and a tort case claimed against DPRK et. al. are reviewed in this paper. The extradition cases were raised by the USA Government based on the Extradition Treaty between Korea and the USA. In the two cases, the USA Government requested to extradite Korean nationals to the USA. In one case, the competent Court decided to extradite the criminal, but in the other case, the Court decided not to. In the cases, the Court held that the Korean Government had a discretionary power in extraditing its nationals based on the Extradition Treaty. In considering the scope of the discretion, the Court suggested the standard of the scope of discretion in evaluating the decision to extradite national criminals in both abstract and concrete manners. In these two cases, I presume that the standard of discretion is clearly set up in extraditing nationals. And a tort case claimed against DPRK et. al. was decided by a public notice because the defendants had not responded against the claim. In the judgment, the Court accepted that DPRK had locus standi as a corporate without legal personality in the civil procedure case. But, in relation to the legal bases invoked in claiming the tort responsibility of DPRK, the Court accepted the binding nature of Geneva Convention relative to the Treatment of Prisoners of War to which DPRK was a State Party and other customary international law including the norm prohibiting slavery. It is doubtful whether it is logically correct in accepting, on the civil procedure perspective, DPRK as a corporate without legal personality which has locus standi, on the other hand, recognizing that DPRK is a legal entity to abide by international legal obligations as an international entity like a State.

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