‘3단계 범죄체계론’의 성과와 한계 - 쟁점이론의 관점에서의 비판 -

Traditionally it has been considered that Korean legal system belongs to Civil Law system. Provided however, it also has to be admitted that Common Law tradition including (legal devices such as) Due Process of Law and Exclusionary Rule also has had strong influence on our legal system until recently. Moreover, it need to be recognized that emergence of unfamiliar jurisprudence distinguishable from legal reasoning under the Civil Law tradition need to be regarded not as intensifying uncertainties and confusions but as opportunity for enriching profound legal reasoning. Therefore, it should be noted that the more meaningful and significant task in the current situation than having an argument upon superiority between two legal systems is not absorbing principles of Common Law in the perspective (way) of conventional Civil Law method setting limitation only in the substantive dimension but incorporating and introducing Common Law principles in the context of Common Law tradition (itself as it is) and making reconstruction attempts contemporaneously under the review of our legal tradition and culture. In this regard, this study focuses on trying to indicate what kind of methodology we want of in transition from conventional pleadings based on legal documents into focused on trial process & pleadings based on oral argumentation and presenting a solution in the way of issue-theory. Issue-theory makes it possible to see procedural law and substantive law under unified viewpoint and to present legal practitioner new possibilities in the area of legal pleadings. Oral argumentation under Common Law tradition is not only a “shallow speaking skill showing off eloquence trying to appeal to the emotions of the jury.” Issue-theory is not only a part of an oral argument but also means of interconnection between criminal substantive & procedural law, and further, may represent new area for essential understanding of our legal reasoning.