민사재판에 있어서 이론, 법리, 실무
Theory, Doctrine and Practice in the Civil Adjudication

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Issue Date
서울대학교 법학연구소
법학, Vol.49 No.3, pp. 313-354
민사재판불법행위법사실인정민사소송adjudicationcivil procedurefact-findingjudiciary
This article addresses three different dimensions in the realm of civil adjudication.

These dimensions, namely legal theory, doctrine and practice, are densely woven

into the process of civil litigation and judgment.

Legal theory is a comprehensive value system as to what law is and what law

ought to be. Legal doctrine is a systemized set of detailed legal principles based on

legal precedents. Legal practice is a process of interpreting and applying legal norms

to a specific case by jurists. These dimensions are closely intertwined with one

another, though they serve different functions. This article analyzes these different

facets from the perspective of a judge.

In the first place, judges, when handling actual cases, tend to turn to a relevant

legal doctrine. The doctrine may function as a framework by which the case is

measured against. Generally speaking, legal doctrines have been formed and verified

over a substantial period of times. This is especially true in the realm of the private

law, which has been cumulatively built up since the Roman period. The formality

of the legal doctrines contributes to the stabilization of the adjudication, thereby

enhancing predictability and stability.

Secondly, judges often rely on their hunch in drawing the conclusion of a

specific case. This may give rise to the danger of arbitrary decision making.

However, it is not necessarily so, for the hunch mentioned above is ordinarily

linked to the sense of equity that has been formed over a myriad of professional

experiences by the judge who sits for the case. This ensures that the legal doctrine

is applied and developed to meet current requirements arising out of an individual

case. In this regard, this practice-related dimension in the civil litigation offers

fine-tuning or customizing function, in the sense that it mitigates inevitable...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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