우리 대법원 법해석론의 흐름: 법실증주의, 법현실주의, 법원리론

How different legal interpretation models are materialized in actual adjudications can be observed through the analysis of majority and minority opinions in en banc decisions. Models of legal interpretation can be divided into textualism, systematism, intentionalism, and purposivism, according to which standard of legal interpretation is prioritized. They can also be categorized by legal philosophy tradition into three models of legal positivism, legal realism, and the theory of legal principles. The Korean Supreme Court has continued to shift its jurisprudence through a number of adjudications since the 2000s. The court valued law’s integrity on the basis of the theory of legal principles from 2005, and then began to take the legal realism approach after 2011, which focuses on political decisions and their consequences. Since the year of 2017, however, the focus has been shifted back towards the integrity of law and order as a whole. Legal positivism, on the other hand, has still remained valid as minority opinions in the supreme court. Such conversion and reconversion in models of legal interpretation have resulted from reflection of diverse philosophies that justices of the supreme court hold. Therefore, models of legal interpretation applied by the supreme court are bound to constantly change to meet the demands of the times. In this regard, it is essential to establish appropriate models of legal interpretation by clearly identifying advantages and implicit risks of each model.