법해석기준의 서열론에 대한 비판적 연구

This article examined the traditional view that establishes the rank order theories of interpretation criteria, and the hereditary criticism that denies possibility of the establishment, and examined the opinion that newly reconstitute the rank order theories by encountering the criticism, by mainly looking at the views of R. Alexy and F. Müller. What the rank order theories have been fulfilling as the latter was confirmed to have intention to maintain the rank order theories, while considering the fact that the weight of the interpretation criteria can change, according to concrete situation of the interpretation. In particular, it was confirmed that within the premise that the legal decision of the judge was embedding the aspect as law-making (as the legal theory unfrequently is choosing), there existed an exemplum that showed the possibility of groping for sticking to the rank order theories in weak form, for the case of the legal theory of F. Müller. It was also confirmed that due to the weight of interpretation criteria being able to change in concrete case, R. Alexy had a tendency to supplement the ranking of weakening interpretation criteria by basing on the practical discourse theory, and F. Müller had a tendency to supplement the ranking of weakening interpretation criteria by basing on his legal theory of the structuration and the method honesty these. Of course for the practical discourse theory of Alexy, the fact that the criticisms which whether the practical discourse theory is the conception that accords with the limited space time and the legal institution of the real world, and whether the premise that the convergence possibility of practical discourse in plural society is appropriate, can be raised, and for the theory of Müller, the fact that it can erose general plan of rational control possibility of the legal work due to the outside control impossibility of the method honesty postulate that replenish the rank order theories, were confirmed. And it could be known that these points can sometimes be the grounds of attempting an approach that people who do not share preconditions of the rank order theories make towards nature of legal work and legal argumentation, which is clearly separative from the existing normative legal method. Next, this article carried out a critical examination about the implications of rank order theories that the supreme court recently selected, regarding general analysis of the above discussion of the academic world about the rank order theories of the interpretation criteria. This was including the analysis of the position that the rank order theories of supreme court was choosing, the analysis of the propositions that were being premised by the position, the criticism about the limits that the rank order theories of the supreme court had according to the development of the rank order theories of the academic world, and the suggestion about the direction that the court should consider towards relating to its rank order theories. In particular, the positive practical values that the rank order theories of the court had despite of various possibilities of criticism were also confirmed, although the points where the court should consider in order to preserve those values and develop a correct demonstration, were confirmed just briefly.