민사재판에 있어서 이론, 법리, 실무

This article addresses three different dimensions in the realm of civil adjudication. These dimensions, namely legal theory, doctrine and practice, are densely woven into the process of civil litigation and judgment. Legal theory is a comprehensive value system as to what law is and what law ought to be. Legal doctrine is a systemized set of detailed legal principles based on legal precedents. Legal practice is a process of interpreting and applying legal norms to a specific case by jurists. These dimensions are closely intertwined with one another, though they serve different functions. This article analyzes these different facets from the perspective of a judge. In the first place, judges, when handling actual cases, tend to turn to a relevant legal doctrine. The doctrine may function as a framework by which the case is measured against. Generally speaking, legal doctrines have been formed and verified over a substantial period of times. This is especially true in the realm of the private law, which has been cumulatively built up since the Roman period. The formality of the legal doctrines contributes to the “stabilization” of the adjudication, thereby enhancing predictability and stability. Secondly, judges often rely on their hunch in drawing the conclusion of a specific case. This may give rise to the danger of arbitrary decision making. However, it is not necessarily so, for the hunch mentioned above is ordinarily linked to the sense of equity that has been formed over a myriad of professional experiences by the judge who sits for the case. This ensures that the legal doctrine is applied and developed to meet current requirements arising out of an individual case. In this regard, this practice-related dimension in the civil litigation offers “fine-tuning” or “customizing” function, in the sense that it mitigates inevitable tension between abstract legal doctrines and concrete actual cases. Since Korea has accepted western legal frameworks, the hunch of Korean judges has been a meaningful tool for bridging a gap between adopted law and korean reality. Finally, legal theory serves as an ultimate source of “justification”. In hard cases, judges seek to unearth a theoretical dimension underlying the case or cases cited in arguments. Consequently, a question in a specific case usually turns into that of legal theory. Therefore, it requires deep insight on human and society, or a proper role of the judiciary. Here lies the significance of the legal theory even in the actual civil adjudication procedure. These dimensions, when interacting with one another in an adequate way, enable the realization of the ideals of private law. This collaboration is not only required in a conceptual domain, but also significant in a real world. It encourages jurists as well as scholars in legal doctrines and legal theories to make united efforts, which I think is certainly essential in the newly launched law-school system in Korea.