입법을 금지하는 규범의 가변성에 관한 연구: 1949년 상표법상 징벌적 손해배상 입법례를 중심으로

The legislative process in South Korea is de facto constrained by a legal norm that restricts legislation. This norm constraints lawmakers from legislating on certain regulations and imposes significant political costs on those who attempt to violate it. This study explores whether this normative constraint is a variable or a constant and how it affects legislation through various mechanisms. To address this research question, punitive damages provisions were selected for case analysis. A comprehensive examination of relevant legislative histories was conducted, and a meta-analysis of scholarly articles’ attitudes towards the legislation was performed. Additionally, a previously forgotten punitive damages provision in the Trademark Act of 1949 was uncovered, and a court decision from the 1970s that awarded punitive damages based on this provision was reviewed. The study’s findings indicate that the normative constraint is more robust when there is no relevant legislative precedent, but weaker when such precedent exists. The research identified a pathway in which a specific event triggers a small number of legislative precedents in a state with no legislative precedents, which in turn leads to a sharp increase in legislative precedents as the normative constraint weakens. In summary, the relationship between legislative precedents and normative constraints is characterized by a feedback loop, resulting in a rapid increase in legislative precedents and a simultaneous weakening of normative constraints. This analysis suggests that some of the norms that prohibit legislation may be of recent origin. It also suggests that legal norms that are taken for granted in the legislative process need to be scrutinized.