고전적 계약이론에 대한 수정으로서 Karl N. Llewellyn의 법현실주의에 관한 고찰

Until now, it seems that the US contract law has had little effect on the Korean Civil Code. Recently, however, the US-style law school system has been introduced into legal education system in Korea. As a result, it is most likely for the effect to extend progressively and comprehensively. For this reason, it is meaningful to examine Karl N. Llewellyn as a representative man of Legal Realism, which is thought to have originated in the US. Major modern legal thoughts in the US, including Law and Society Movement, Critical Legal Studies, and Law and Economics, succeed to Legal Realism. What makes this examination meaningful is, among other things, the fact that Llewellyn drafted a bill of the US Uniform Commercial Code, which seems to be typical of contractual norms in the US because the Code has been enacted in almost all states within the US. As early as 1931, Llewellyn tried to modify a classical contract theory in his article 「What Price Contract?」. According to him, a doctrinal orderly synthesis tends to distort all vision of the underlying reality. For it is and must always be in conceptual terms, in classes, in supposed uniformities, inclusive, exclusive. He argues that even if the substantial replacement of “meeting of the minds” by “a theory of objective manifestations apparently indicating promise, and reasonably relied on by the other party” is a great advance, the very advance has obscured the sociological vitality of will theory. To solve this problem, he propose a dual track theory of interpretation. This is a theory of interpretation in which one track is firmly embedded in the factual world and the other in the conceptual world. That is, in the conceptual side, it is ideal that legal or contractual rules should be singing rules. However, if not so in the factual side, situation-sense methodology should be used in the interpretation of those rules.