법관에 의한 법형성의 실제, 한계와 입법적 사항의 문제 -호적정정 결정과 특별한정승인 판결의 재음미-

In this paper, to discuss the issue of judicial law-making, the three-stage model of legal interpretation and judicial law-making, namely legal interpretation, judicial law-making praeter legem, and judicial law-making contra legem, was explained. This paper elucidated the reasons why it is necessary to distinguish between legal interpretation and judicial law-making, as well as the reasons for distinguishing between judicial law-making praeter legem and judicial law-making contra legem. Furthermore, to consider how judicial law-making is actually developed, the paper categorized and reviewed significant Supreme Court rulings into analogy, teleological reduction or expansion, judicial law-making invoking legal principles, judicial law-making invoking the constitution, and judicial law-making through the repeal of statutory law. While judicial law-making can be justified, if excessively expanded, it can infringe upon the legislative supremacy. Therefore, it should be implemented exceptionally within certain limits, and this paper discussed those limits. Specifically, the limits on judicial law-making contra legem are addressed in four aspects: First, unless it is demonstrated that modification of current laws is inevitable due to social changes or legal principles, judicial law-making contra legem is difficult to justify. Second, unless additional circumstances in which the court holds a comparative advantage over the legislature are demonstrated, judicial law-making contra legem is difficult to justify. Third, if attempting judicial law-making contra legem leads to infringement upon other pivotal legal principles, such attempts should be restrained to protect the legal stability established by those principles. Fourth, in the case of recently enacted laws, the policy judgments of the legislature should be respected as much as possible, making judicial law-making contra legem very exceptional in such cases. In light of these aspects, the majority opinion on decisions to correct family registers for a transgender person can be evaluated as falling within the limits of judicial law-making contra legem and is appropriate in that it pertains to matters where the court can have a comparative advantage over the legislature. However, the dissenting opinion on the case of special qualified acceptance of an inheritance can be evaluated as violating and undermining the fundamental principle of agency. It does not adequately justify the need for judicial law-making contra legem concerning a recently enacted law, rendering its position inappropriate.