정치와 법 - 법원의 법률해석 기능에 대한 실증적 고찰에 관하여 -

Abstract

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...