비교 사회,문화적 문맥에서 본 사법적극주의와 사법소극주의 - 하나의 탐색 -

Abstract

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

all.

To a great extent, the institutional difference in judicial review of legislation...