판결의 법산출성을 강조하는 법이론의 입장에서 본 법관법 - 에써, 피켄처, 뮐러를 중심으로 -

This paper seeks to intensively review the views of the legal theories that emphasize the fact that judicial decisions tend to actively produce the contents and meanings of the written law on the normative status of judge-made law. These theories do not necessarily affirm the normative status of judge-made law actively even though they emphasize the fact that the judicial decisions produce the contents and meaning of the written law. The spectrum varies from the views that deny the normative status of judge-made law on the one hand to the views that affirm the normative status of judge-made law on the other hand. The problem is their logic. As they value the role of judicial decisions in understanding the meaning of law, their views are of great interest both in the affirmation and in the denial of judge-made law. Based on this critical mind, this study seeks to examine theories J. Esser, W. Fikentscher, and F. Müller. These theorists emphasize the properties of judgment that produce the contents and meanings of written law, and at the same time they are very interested in how to control the rest of the rulings that are not controlled by the written law alone. This study will review their views sequentially after categorizing them into a position denying the status of judge-made law as a source of law, a position affirming the status of judge-made law as a source of law, a position denying the concept of judge-made law itself.