민법학, 개인과 공동체, 그리고 법원

This article deals with two theoretical axes that significantly affect civil law jurisprudence. One is the axis of 『Dynamism between individual and community』, and another is the axis of 『Role of judiciary』. Dynamism between individual and community largely affects and shapes civil law jurisprudence. This dynamism comes in different forms in different areas. Autonomy and paternalism in contract law, reparation and deterrence in tort law, solid ownership and flexible ownership in property law are main factors that form such dynamism in civil law. Further, the judiciary plays an important role in reflecting such dynamism in actual cases. The role is influenced by the attitude and preference of a judge toward form and substance, rule and standard, Sein and Sollen, ex ante perspective and ex post perspective, which in turn influence the outcome of the case. In this regard, defining the role of the judiciary also affects and shapes civil law jurisprudence. After analyzing the above theoretical issues in comparison with the doctrinal and practical issues, this article emphasizes coherence among theory, doctrine and practice. This article also suggests that openness and flexibility are required of the current civil law jurisprudence in Korea to attain such coherence.