법관의 결정의무 – 재판거부금지의 역사적 전개과정에 관하여

The judges must decide any case submitted to them; they cannot refuse to decide because of a lack of applicable norms or rules. It is called the prohibition of the denial of justice, which seems to be beyond question nowadays. The main purpose of this paper is, however, to show that such prohibition is not an a priori structure, but an evolutionary achievement. To do this, we need to closely observe the historical development of the prohibition of the denial of justice in Western legal orders. The formation of the modern state was accompanied by the concept of sovereignty. It was understood that the legislative power forms the core of sovereignty; legislation came to the fore when it comes to state power. This brought about far-reaching changes in the way people understood the relationship between legislation and interpretation as well. It is necessary to go over the prohibition for the judge to interpret legislative provisions when making a decision and hence the obligation for him to refer to the legislature how to decide the case. These principles for the judiciary can be observed in the modern history of France, Prussia and Austria in particular, whether expressly written or not. And this paper attempts to elaborate on the dramatic transformation from such référé législatif to the prohibition of déni de justice. Furthermore, a sequel to this paper will deploy Niklas Luhmann's system theory to examine the theoretical grounds for the prohibition of the denial of justice.