S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 49, Number 1/4 (2008)
민사재판에 있어서 이론, 법리, 실무
Theory, Doctrine and Practice in the Civil Adjudication
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.49 No.3, pp. 313-354
- 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...