최근 공개된 중국 판례상으로 본 불확정법률개념의 유형화와 적용기준에 관한 법리 연구 - 민사(상사)판결을 중심으로 -

In the case of China, a volume of legislation increases dramatically each year due to rapid social development, and uncertain concepts in law are implicit in many times. It was studied, beginning with what criteria this concept was applied to in the judicial process and what type of application it was. A precedent study review shows that a few Chinese scholars are approaching this from empirical angle (research methodology), and there is no research in Korea. Uncertain concepts in law is classified as experienced concepts and normative concept, but in this study, normative uncertainty concept is that a particular subject (generally a judge) can express its meaning only through subjective valuation (judgment) of that concept. This concept is distinguished by the type existing in 「General Provisions of the Civil Act」 and 「Contract law」, 「real rights」 and 「Common provision of the civil act before revision」 in law. Examining the existence and type of major indeterminate concepts cited in the Chinese Civil Law and precedent shows the existence of ① public order and good morals, ② public interest, ③ good faith, ④ fairness and considerable loss of fairness, ⑤ national policy. The decision by the Supreme People's Court in China, which made public all cases despite problems such as the content and format of the ruling, could also serve as a lesson for South Korea's judiciary, which has yet to make a full disclosure of the case for political or special reasons.