헌법재판소 판결례에서 작동하는 일반적 법원리–자연법적 직관판단과 법률실증주의 예비적 고찰-

This study is a basic work to confirm the law principles that are operating in-depth at the root of the Korean legal system. Therefore, it is the work of analyzing a case suited to this purpose among the judgments of the Constitutional Court, which is the highest court among various places where general law principles can be discover. The framework of the analysis is 'focusing on natural law intuition judgment and legal positivism'. This is because it is necessary to explain the thesis of “natural law's intuition judgment”that works when the judges determine the facts and interpret the legal text to apply the legal regulations selectively. Constitutional Judges has a social position and duty to train the basic ability to see the law and the relationship between humans and the state in a holistic view. In the process, it is necessary to closely recognize the basis for the generation existence and goal of state power, to cultivate a clear sense of history, and to be able to read the spirit of the times. The Supreme Judge as well as the Constitutional Judge must comply with the positive law, but must be able to devise and present “what the law is ” or what the law should be in a specific case. This is because constitutional disputes such as examination of unconstitutional laws that they deal with have a large social role in advancing the future constitutional values ​​at the border of a diversified society and presenting the significant normative values ​​of the community. In that sense, it is meaningful in itself to preliminary study the relationship between the judgment of natural law intuition and legal positivism in the judge's judgment writing argument. When a judge decides on a specific case, his arguments are delicately different depending on whether he puts the validity and justification of the positive law on the realization of concrete justice through natural law's intuition judgment, or on the trust interests of legal positivism and legal stability. It is necessary to carefully examine the linguistic structure of the argumentative logic of the Constitutional Judge and the Supreme Judge. This is because it is possible to foresee the natural law's heart intuition that works in the process of writing the judgment of the Constitutional Court. It will be gathered in the future as a constituent factor of general law principle. By capturing the structure of “natural law intuition judgment” implied in the judgment of the Constitution, we will examine the meaning of the extension and implication of the legal language. This is to analyze the meaning network of the sentence of the judgment, which consists of the “natural law intuition judgment” of fact recognition and the “legal positivism” decision structure that works when the judges write the judgment. This is a theoretical work to prepare the general law principle of natural law's intuition judgment are projected by analyzing the details of the constitutional judgment. At this point, it is not an exaggeration to say that the “law language” that can be called a general law principle that will represent Korean legal culture is blank. The purpose of this study is to confirm the projected context of the 'natural law's intuition judgment' which is clearly operating when judges write judgments. And by examining the thesis of the reasoning, it is to prepare a general law principle within the legal system of Korean society. As one of the criteria for forming such law principle, the hypothesis of 'dynamic sentence newly open(活文開創)' is proposed. The meaning is that the judges dynamically reinterpret the legal texts and open the formation of justice in a practical sense.