사법작용의 기능과 한계 - 체계이론의 관점에서 -

“What functions can judicial action perform in a modern society?” and “What are the limits of judicial action?”. These two questions will be addressed in this article. To this end, the author quotes the perspectives of the systems theory established by a German sociologist Niklas Luhmann. Unlike the past when the judicial action was considered passive, the modern society requests much to judicial action under the name of ‘judicial activism’. In short, the modern society wants to resolve a wide range of social conflicts though the laws. However, there have been a lot of arguments until now on whether the legal system can actually resolve all social conflicts. Does the legal system, particularly, the judicial action have the functional competence to solve any and all problems with a modern society? To this question, the systems theory replies skeptically. According to the systems theory, the judicial action is not able to solve the problems with a modern society because of the ‘functional differentiation of modern society’ and the ‘operative closure of legal system’. The author intends to analyze on what grounds the systems theory has reached to this conclusion. To this end, the author intensively analyzes the ‘functional differentiation of modern society’ and ‘legal system as autopoietic system’. Of course, the author does not always agree with the arguments of systems theory. This is because the author argues that the judicial action performs more functions than what argued by the systems theory. It is not appropriate to request much to or have much expectations on the judicial action in the modern society wherein complexity increases surprisingly; be that as it may, it is also inappropriate to underestimate the functions of judicial action.