법개발학(Law and Development)의 관점에서 본 입법이론과 입법실무

An increasing number of international development cooperation projects are conducted in Korea nowadays, it is very meaningful to research on legislation theory and practice in law and development perspective. First, many theories on legislative process were devised based on stable political situation in western countries. In Korea, legislative practice from 1960s to 1970s can be mainly explained by elite-ideology theory. However, potential problems which can arise from elite-ideology theory were addressed by legislative practice which can be addressed by four rationalities theory. Second, it is necessary to analyse the efficiency of existing legislation before enacting new statute. Such pre-evaluation system is not well established in Korea. Although statutory examination system in the Ministry of Legislation shares the common features, this system does not include the evaluation of efficiency in existing legislation. Such pre-evaluation was substantially conducted by governmental or private research institute. Third, the limitation of legal transplant and problem-solving method should be identified. Legal transplant tend to be ineffective as it often does not respect the cultural background of host country. Problem-solving method has very restricted view on law as it understands law as mere means to an ends. Korean legislative reform experience shows that citizen’s capacity building in conducting comparative law research is critical to overcome these limitations. Fourth, it has merits to view legislation as an interpretation process of constitutional law. This perspective enables ones to see reform of individual statute in a wider context of expansion of rule of law as a constitutional order. In Korea, thin version of rule of law was mainly expanded by the Ministry of Legislation, while thick version of rule of law was strengthened by the Constitutional Court.