헤데만의 ‘일반조항으로 도피’에 대한 수용적 고찰

A receptive Study on the Hedemann's 'Die Flucht in die Generalklauseln' 1. This piece of writing analyzes and examines Hedemann’s book entitled 0 from an accommodating point of view. Hedemann analyzed the development and extension process of the general clause and specifically described the constitutive requirements, functionalities and risks of the general clause for each individual law. In this book, he used the law, the spirit of the time, along with his political insights to forecast the roles of the general provision for the Third Reich with an incredible level of accuracy. In this book, he refers to the Soviet Union as a representative example of the risk caused by arbitrariness. Yet, the warning about such risk was immediately implemented by the Third Reich after its publication. 2. The general clause has all have its own application areas. For instance, the principle of good faith functioned in the civil law, reasons for abatement in the criminal law, public well-being and order in the constitutional law, and the harsh clauses worked as a general clause in the tax law and the civil enforcement laws. However, beyond this areas, the principle of faithfulness has been applied as a principle of law spanning various individual legal areas such as administrative law. According to Hedemann, almost all of the dictators who staged in the world history proved that they abused the general clauses such as welfare and public well-being as a means of maintaining their regime. Furthermore, the extended application of the general clause made the legal experts gentle(Verweichlichung), unsettled the legal order(Unsicherheit), and warned the risk of arbitrary law enforcement by the judges(Willkuer). 3. As in Germany, there is a propensity to escape to the general clause in our own legal system today. For instance, the most representative principle of faithfulness operates as an invincible rule not only in the civil law but also across all areas of law. In particular, there are many cases in which the principle of faithfulness is used as it is for the judicial norm as well as the principle of change of circumstances and the principle of invalidation, as the principles of derivation, have been established as the systems of importance. The widespread and extended application of such general clause ought to also be heard by the community of our legal scholars and court, providing the warning that the state and the law may be placed under risk.