판례의 법원성 재검토 -법이론의 관점에서

The problem of judicial precedent as a legal source is considered as an important issue in basic law, such as legal methodology, etc. Therefore, various studies have been conducted on this topic. However, the problem of judicial precedent as a legal source is not only meaningful as a matter of basic law, such as legal methodology, legal theory, etc. This is because the problem of judicial precedent as a legal source is closely related to practical law. For example, legal matters such as the material requirements of a case change or the retroactive effect of a case change are closely related to the problem of judicial precedent as a legal source. This problem is mainly discussed as to whether the judicial precedent constitutes an independent legal norm. However, there are still conflicts of opinion on this. There is still no unified conclusion as to whether the judicial precedent is an independent norm. Against this backdrop, this article reexamines the problem of judicial precedent as a legal source using new theories and perspectives. However, this article focuses on the theoretical issues on the problem of judicial precedent as a legal source. Practical legal matters about this are not covered in this article. This article uses new theoretical resources and perspectives to find out what the law presupposes in the problem of judicial precedent as a legal source and what the concept of legal source means. In particular, Kelsen’s pure legal theory, Müller’s structured legal theory, and Luhmann’s systems theory are intensively reviewed. This leads to the following conclusion. First, this article claims that the concept of legal source means the basis for the cognition of the law. As to what the concept of legal source is, there exist understandings such as the basis for the existence of the law and the basis for the cognition of the law. This article identifies the legal source as the basis for the cognition of the law because it has a great significance, especially when judges are trying to make a decision. In addition, this article deals with the problem of judicial precedent as a legal source by using the procedural and operational perspectives which can be found in Müller’s structured legal theory and Luhmann’s systems theory. According to this, this article comes to the conclusion. In fact, the judicial precedent has a limited effect, but, in terms of the meaning of legal norms, it can be said that the judicial precedent is an independent legal norm because it acquires full meaning and function of the law.