정치와 법 - 법원의 법률해석 기능에 대한 실증적 고찰에 관하여 -
Politics and the Law - A Positive Analysis of Statutory Interpretation -

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서울대학교 법학연구소
법학, Vol.46 No2 pp.344-376
권력분립의 원리실증적 정치분석이론사법부의 법률해석법원의 기능과 역할
The prima-facie understanding of statutory interpretation is that the court has
the final word about the interpretation of law on political matters, in that the
court has the sole and the final right of interpreting the statutes which are
enacted as a result of battles and compromises among various political agencies.
However, when we review this understanding in the aspect of positive political
theory, we soon realize that this understanding of the process of statutory
interpretation is false. Each and every statutory interpretation provided by the
court in political cases gives rise to certain political reactions. The political
actors of the nation (i.e., the National Assembly and the President) may exert
their will and the power to change any disadvantageous statutory interpretation of
the court to their advantage.
Sometimes they try to change the view of the court by changing the
composition of the court (so called ‘the Court-packing’), and sometimes they try
to influence the view of the court by changing the rules on the budgets and the
formation of the courts for which the court itself can not make the rules.
This trend of political reaction on the statutory interpretation has become more
distinct as the court became more involved in deciding on political matters and
influencing the politics after World War II. We may refer to this trend as “the
Politicizing of the Law” and “the Judicializing of the Politics”.
In this paper, I have attempted to show and analyze the real process of the
statutory interpretation by introducing the positive political theory of John
Ferejohn. I believe that such analysis will provide a useful guidance in...
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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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