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법학과 사회과학-학제 연구방법론의 모색 : 제2부 ; 제4주제 : 헌법재판에서의 사회과학적 변론 -Brown사건과 생계보호기준사건의 비교를 중심으로-
Judicial Review and the Social Science: With a Comparison between Korean and American experience

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Authors
한상희
Issue Date
2000
Publisher
서울대학교 법학연구소
Citation
법학, Vol.41 No3 pp.77-111
Keywords
Holmes 대법관계약자유의 원칙헌법재판제도공권력행사의 헌법적 정당성여부
Abstract
It has been a long tradition for Korean jurisprudence and judicial review
practice that judicial adjudication should be based on normative interpretation
of some preexiting rules. The facts-finding, on which authoritative
adjudication shall be decided, must be distinguished from rule-finding; they
cannot and shall not be intermingled, but only independent each other. There
shall be absolute distinction between the normative judgement, the factual
recognition and understanding.
This paper would not deny this differentiation; rather, it tries only to posit
that fact-finding based on scientific method may make some significant
difference in normative judgment, and so the social science, with which we
can find out some general and objective understanding on pending issues,
can give reasonable grounds in claiming and adjudicating a case.
Judicial review on constitutionality of any statute or any regulatory
actions of state organs is different from any other type of adjudication. It is
a kind of legislation, which creates new legal regulations and makes so
serious influence on the whole society as well as the parties at issue. This
means that it shall be necessary to consider seriously legislative facts as
well as adjudicative for the decision to acquire appropriate legitimacy - not
only substantial but also procedural. One of the most obvious evidence for...
ISSN
1598-222X
Language
Korean
URI
http://lawi.snu.ac.kr/

http://hdl.handle.net/10371/8963
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 41, Number 1/4 (2001)
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