패러다임과 법의 변화-한국형사법의 방법론 모색-

In the 21st century when artificial intelligence, internet of things, and the 4th industrial revolution are coming closer, it is more important to rethink and reflect our legal methodology and to devise a new method to navigate an unprecedented age. The majority of 11 review papers published from 1978 to 2011 recognizes that Korean jurisprudence has adopted, and is still widely influenced by Western jurisprudence, especially from Germany and United States, sometimes via Japan. Commentators emphasized the need to outgrow the imitation or import of jurisprudence and to develop an original Korean Criminal jurisprudence. However, the specific methodology how to get to the goal was rarely suggested. In 1987, Professor Shin Dongwoon evaluated the Korean criminal jurisprudence, and criticized that it overly concentrates on the introduction of foreign theories, and that it neglects independent Korean research. As alternatives, he advocated the historical analysis method which studies the history of Korean legislation, the comparative law analysis method which utilizes the comparison of similarities and differences between Korean law and foreign laws in the interpretation of Korean law, and the case analysis method which emphasizes the research of court cases. This method contributed to the Korean Criminal jurisprudence enormously. However, in this fast changing era we need a more scientific method. Thomas Kuhn describes paradigm as an “exemplar” or “disciplinary matrix,” and says that scientist’s cognition and understanding of natural phenomena occurs based on a paradigm in his book The Structure of Scientific Revolutions(1962). Once a paradigm settles into a dominant or prevailing paradigm, the science at the time becomes normal science, and scientists devote themselves to individual puzzle-solving during normal science. When a crisis comes, a new paradigm becomes the dominant paradigm and a new normal science is established. In jurisprudence there can be a particular interpretation of law that receives support from both the Court and a majority of legal scholars. Let us call this ‘dominant opinion’(herrschende Meinung in German). Such a ‘dominant opinion’ has a similar status as the dominant or prevailing paradigm in science, which serves as exemplar or disciplinary matrix. Just as numerous puzzles are solved based on a prevailing paradigm in the field of science, legal professionals and academics solve a bulk of legal cases efficiently under the legal paradigm or dominant opinion. Once a dominant opinion or dominant legal theory is formed, it becomes normal jurisprudence and solves most of the routine cases. However, a normal jurisprudence is disturbed when such anomalies or non-routine cases emerge and accumulate. They cannot be resolved by existing dominant opinion or legal theory, and crisis comes. With the growth of anomalies an alternative legal theory or a competing legal paradigm appears, and it finally replaces the existing dominant paradigm or dominant opinion and becomes the new dominant paradigm. In this regard, the application of paradigm theory in the field of law may be termed ‘legal paradigmism.’ The paper examines 3 cases, regarding a forgery of photocopied documents case (1989), exclusion of illegally seized evidence case (2007), and the unconstitutionality of adultery punishing clause case (2015). This paper asserts that with the legal paradigmism, we can understand the structure of legal changes, and interpret the law more scientifically.