日本 大正時代 判決이 우리 民法學에 미친 影響에 대한 批判的 檢討

Japanese Taishō era(1912~1926) is considered the time of the liberal movement known as the “Taishō democracy” in Japan, the golden era of Japanese economics and culture. And the above era is regarded as a remarkable period during which the foundation of current Japanese civil law was laid even though that era did not last long. Judgments made during the era had significant influences on the establishment of a few legal theories and these theories have become the mainstream in the analysis of Japanese civil law upto now. This study begins with reviewing the judgments made during Taisho era and theories built ever since the era in order to investigate how those theories have affected our country's legislative history and judgments of courts. The vigorous discussions to overcome the instability and flaws of Japanese civil law had positive effects on the legislative process of the Korean civil law in some degree. For example, The Korean civil law has solved the problem regarding the scope of protection through excluding injury of legal rights from legal components that is generally required in torts. And it also could avoid the collision of logics on the coverage of compensation by enacting article 763. On the other hand, there are still some judgments in which the court adhered to 'the firm position of precedents' and presumably repeated the reasoning of judgements of that era in spite of the criticism of theories. If such a firm position of the court has derived from very specific case of 100 years ago and then became a general doctrine of our court, we can cast a doubt on specific validity of applying these precedents to make judgments on cases nowadays.