법학과 사회과학-학제 연구방법론의 모색 : 제2부 ; 제3주제 : 법적결정과 사회과학: 과외금지조치위헌결정을 중심으로

Abstract

A very formalistic, legal positivist approach has been the dominant method to jurisprudence in Korea. By using Korea's Constitutional Court decision against an anti-out-of-school classes legislation (課外禁止) handed down this year and another against a Civil Law ban on a marriage between broadly defined family members bearing the same family name and the same place of origin (同姓同本禁婚) in 1997, a strong criticism is made to such a legal positivist approach by way of developing a social science based method to jurisprudence while exposing limits and pitfalls of the legal positivist approach. Our argument is that scientifically conducted research data including social science research based ones are not only useful but also necessary for jurisprudence in that they can provide an indispensible element of rationality in legal decision-making. In Korea, competition to enter a college, especially a prestigious university, is extremely keen. That competition drives many students and their parents to seek extra-curricula tutoring and commercially-run cram courses, many of which are a repetitive drilling of what is offered in regular courses at a school. Many parents feel that regular school classes are not sufficient enough for their children in preparing for college entrance. Many students feel regular classes at their school boring because they have already learned what are offered by their teacher from out-of-school classes; many of them are not attentive or even dozing at regular school classes because they are even physically tired from long after-school classes they attended in the evening the day before. In the out-of-school classes market, at the same time, the quality of instruction is determined much by the amounts of tuitions parents are paying. Naturally well-to-dos can afford to pay high tuitions to get better tutors or cram course teachers for their children while others cannot. Overall many parents feel extra-curricula classes a quite financial drain on their family. Many lower class members feel alienated by the prospect that they are an underdog even in out-of-school lessons and eventually in college entrance. Thereupon the government introduced a broad legislative ban on out-of-school classes to save regular school education and to reduce the sentiment of alienation felt by the lower class members. The Constitutional Court declared it unconstitutional, however, on the ground that it violated one's constitutional right to cultivate himself and parents' right to educate their children the way they like.