S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) 법학 법학 Volume 40, Number 2 (2000)
우리 나라 최초의 헌법재판논의 -처의 행위능력 제한에 관한 1947년 대법원판결에 대하여-
The First Debate on Korea on The Constitutionality Control -Some remarks on the 1947 decision of the Supreme Court of Korea against the restriction of wife`s capacity-
- Issue Date
- 서울대학교 법학연구소
- 법학, Vol.40 No.2, pp. 125-151
- The purpose of this article is to introduce and evaluate the debate which arose after the Supreme Court of Korea ruled in September 1947 that it “would not apply” Art. 14 of the Japanese Civil Code, which did not allow a wife to file a lawsuit unless she gets the consent thereto of her husband. Even after the U.S. Military Government was established and succeeded the power of the Japanese rulers in August 1945 after their defeat in the Second World War, the Japanese Civil Code was generally assumed to be still in force. After the decision was announced, some of the best lawyers of freshly liberated Korea discussed on the meaning and the explicablity of the decision. One of the most interesting aspects of the debate is that some voice was heard that the decision could be explained and justified as a constitutionality control, that is, as an application of “the constitution in the substantial meaning of Korea, a nation in the making.” It is natural that there were many oppositions to this position. The article trace the debate, focusing on this constitutionality problem under the regime of the U.S. Military Government, and its influences on the later decisions of the Korean courts and the constitution of the Korean Civil Code.