民法 解釋方法의 理論과 實際 - 문언을 중시하는 해석과 민법 제1조의 재조명 -

In my opinion, the legal professionals practicing korean laws might have been undervaluing or not fully appreciating the core value or the philosophy that underlies Article 1 of the Civil Act of Korea(in this abstract, referred to as “the Article”). The Article proclaims that all civil cases should be carefully discussed and analyzed within the framework and the spirit of the Article. In other words, the Article declares principle of ‘superiority of statutory laws’ and ‘negation of binding power of precedents(the principle of stare decisis)’. Therefore, the customary law can only have effect as far as it does not contradict with the mandatory legislative law. The same logic applies to the Civil Act Article 2, which provides ‘Trust and Good Faith’ principle. Textualists criticize that the Dynamic Statutory Interpretation suffers the fundamental democratic deficit. Justice Scalia pronounced, “My point in all of this is not that the common law should be scraped way as a barnacle on the hull of democracy. I am content to leave the common law, and the process of developing the common law, where it is.” It simply provides us with an useful inspiration with regard to the interpretation of our Civil Act. Although Korean legal system has not adopted ‘common law system’ or ‘the principle of stare decisis’, both the court and the academia have unjustly ignored the importance of the text itself of the legislative law. According to the plain meaning of the Article, the text of the legislative law should be the primary source of court decision. In this regard, it should be criticised that the Supreme Court is too ready to moderate the application of the mandatory statutory law based on the principle of Trust and Good Faith and socioeconomic purpose.