사법심사로서 법률에 반하는 법형성—홍진기의 주장을 예로 하여—

At the time of the U.S. Military Government, the Korean Supreme Court of Byung-ro Kim made a very interesting ruling. In the case in which Article 14 of the old Japanese civil law, which clearly discriminates between husband and wife, was in question, the Korean Supreme Court of Byeong-ro Kim refused to apply Article 14 on the grounds of democracy and gender equality. Considering the results alone, this judgment seems very reasonable. However, the question is whether the Supreme Court had the authority to reject the application of Article 14 of the old Japanese civil law, which was still in effect as the current law, in the situation where the Korean Constitution was not enacted at the time, and if so, what is the basis for that? Even at the time when the Supreme Court’s judgment was passed on this matter, a fierce debate arose between remarkable lawyers. Among them, Jin-gi Hong can be mentioned as the lawyer who developed the most notable argument. Jin-gi Hong supported the above Supreme Court’s judgment with original and creative arguments. Here, Jin-gi Hong accepted the judicial review theory established by the U.S. Supreme Court and created the theory of ‘the state in the making’ to justify the Supreme Court’s judgment. From the point of view of the legal theory, the above Supreme Court’s judgment is largely related to two issues. The first is the issue of ‘Rechtsfortbildung contra legem’, and the second is the issue of judicial review, that is, constitutional adjudication. Among them, Jin-gi Hong mainly was dealing with the second issue. However, this issue is closely related to the Rechtsfortbildung contra legem from the point of view of the legal methodology. According to the rule of law established as one the constitutional principles of today’s modern states, judges should be strictly bound by the law. However, the Supreme Court at that time was not bound by the positive civil law, but rather rejected it. In the legal methodology, there is a controversy over whether to allow this. This article takes Jin-gi Hong’s argumentation as the central axis of analysis and additionally deals with the problem of Rechtsfortbildung contra legem. In particular, it shows how the Rechtsfortbildung contra legem can become a matter of judicial review. In addition, the legal meaning of the argument developed by Jin-gi Hong, especially the argument ‘a state in the making’ is examined.