법정보의 조사 과정에 대한 방법론적 고찰

초록

Legal research is a basic legal skill that anyone who studies law should learn. Legal research is not only a skill for studying law at law school, but also a skill for utilizing law in law practice. Legal research is dispensable for practitioners to solve legal problems creatively. From the macro perspective, legal research starts with a fact analysis of the case, formulates legal issues, searches for the legal information on these, and applies the results of search to the case, It proceeds in the process. Legal research thus grasped does not differ much from the application of law as stated in legal methodology. In this regard, Legal research is not only a skill but also a science. If we admit the scientific nature of legal research, we should also recognize the need for methodological reflection on legal research. In addition to the bibliographical approach, various methods such as the integrated approach aiming at solving legal problems and the process-oriented approach were discussed. The bibliographical approach underpinned by Frederick Hicks focuses mainly on teaching the legal materials available for first-year students of law school or new lawyers and how to use them. The bibliographical method, combined with the traditional law school curriculum, can be called as the traditional method of legal research in that it has become the basic methodology of legal research. In the mid-20th century, Majorie Rombauer attempted to identify legal research as a process of problem solving associated with legal analysis or legal writing, not as an independent part. According to her, lawyers' expertise and skills in legal analysis, legal research, and legal writing are inseparably combined in the solution of legal problems. Rombauer's methodology is macroscopically the integrated approach, but from a microscopic point of view, it searches for laws, searches for binding precedents, searches for persuasive precedents, and searches for refining of analysis. As a result of this. it can be understood as a four step method of legal research. Since the 1970s, the process-oriented approach focusing on the process of legal research has been highlighted as a new method of legal research. According to this, the process of legal research consists of interdependent aspects of analysis, search, application and communication. According to Christopher and Jill Wren, a representative of the process-oriented approach, legal research is a process of collecting and analyzing facts, establishing legal issues related to the facts, organizing and evaluation of legal information, and an update. What is the most appropriate legal research methodology for effective legal research? I think the integrated approach is the ideal method for legal research. However, it seems that the integrated approach, which has not been established in US law schools, can not be transplanted to law schools in Korea. If so, the process-oriented approach would be a feasible alternative in the curriculum of law school. Even if the process-oriented approach is adopted, the bibliographical approach should not be excluded because bibliographical knowledge is necessary. Legal research is not linear, but essentially circular. Then, looking at the actual process of legal research, it will be more than just search for legal information without applying the acquired legal information to the case. This paper adds the application of legal information and understands the process of legal research in five interrelated steps. Step 1: Determine significant facts. Step 2: Formulate legal issues to be investigated, Step 3: Search for legal information on legal issues, Step 4: Apply the acquired legal information to the case, Step 5: Confirm the result of application after updating if necessary. Due to the development of ICT in today’s world, legal research environment has undergone rapid and wide-ranging change. The greatest distress that the change brought about is that the online information available to researchers, whether legal or non-legal, paid or unpaid, has become too abundant. The flooding of legal information requires more effective and efficient search of legal researchers. Since legal research is a reconstructed application of law, the strategy or process of legal research will not change, despite the changes in the research environment. The core of legal research lies in the strategies not in the formats. Legal research is closely related to understanding and analysis of law not tools and platforms. Through the era of knowledge age and information age, changes in the research environment such as flood of legal information and automation of legal research are not only affecting the methodology of legal research but also the legal system. It also changes the way we think about law. In this respect, the study on the structure and process of legal research is both information science and legal philosophy. The study on the basic theories of legal research, especially the methodology of legal research, is an important and urgent task from the viewpoint of legal philosophy.

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