결정강제와 재판거부금지– 체계이론적 해명을 위한 시도

The prohibition of the denial of justice (Justizverweigerungsverbot) has been taken for granted since the 19th century; it is very difficult to find any theorist trying to analyze and explain the principle. Needless to say, any jurist has never constructed a complete theory to describe the significance of the norm in the legal system as a whole, which needs us to look outside. This paper basically gives details about the correlatino among three distinctions made in the legal system: the distinction between closure/openness, code/program, and center/periphery. And this systems-theoretical approach will lead us to new insights into the position of courts in the legal system as a whole which are subject to the special pressure of the prohibition of the denial of justice. To sum up, the operational closure and the binary code are dealt with in the center of the legal system which lies far away from the environment, whereas the structural coupling and the programs are coped with in the periphery which stays in close contact with the environment. This can be applied to the sub-systems including the legal system as well. While courts as the center of the legal system deal with its code of legal/illegal and accomplish its closure, legislators and contracting parties as its periphery generate its programs and guarantee its openness. Statutes need not to be passed and contracts need not to be concluded, but courts must decide every case submitted to them. This compulsory decision-making gives an institutional expression to the closure and the code dealt with in the center of the legal system; only courts are subject to this basic norm, or the prohibition of the denial of justice.