비교 사회,문화적 문맥에서 본 사법적극주의와 사법소극주의 - 하나의 탐색 -
Judicial Activism / Passivism In Cross Socio,Cultural Contexts - An Exploratory Inquiry -

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서울대학교 법학연구소
법학, Vol.46 No1 pp.19-39
사법적극주의 한국사법소극주의 일본위헌법률심사권헌법재판소 탄생(1987)
This paper is designed to analyse a contrast of Korean judicial activism and
Japanese passivism in cross-socio․cultural contexts. A comparative socio․legal
study is not an easy task. Our study is necessarily a very tentative one.
In Japan, a policy decision including legislation is made on the basis of
consensus that has been built on the related matters. Attainment of a consensus
takes a longer time but once it is reached, a breakaway from it is not tolerated
since Japan is a society where social harmony is seriously taken. In comparative
terms, social harmony and consensus in decision-making are normatively taken
also seriously in Korea. In practice, however, social dynamism seems to prevail
in Korea. Individual personality and autonomy seem to be more pronounced in
Korea than in Japan. Attainment of consensus seems to be much harder in
Korea than in Japan. Consensus, even if it is reached in decision-makings, does
not seem to be as strongly binding on individuals or groups in Korea as in
Japan. Social dynamism results therefrom. Korean and Japanese judges seem to
share their respective society's socio-cultural characteristics, which in turn seem
to be reflected in their respective judicial activism and passivism dichotomy.
Korean judges seem to be slightly more autonomous and independent-minded in
the judicial hierarchy and toward the government than Japanese counterparts after
To a great extent, the institutional difference in judicial review of legislation...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 46, Number 1/4 (2005)
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