법적 정당화 과정으로서의 법 적용

초록

Law yers, includ ing judges, d raw lega l conclusions by precisely analyzing the facts in each case, finding and applying relevant law to the case. Of course, in the stage of finding and applying relevant law, the interpretation or concretization of the law also takes place. Interpretation and application of the law can be distinguished, but in interpreting the provisions of the statute in an individual case, there is no choice but to consider the facts of the case. Therefore, it is difficult to abstractly present only the results of interpretation before the factfindings. In the process of concretization of the law, interpretation and subsumption are mixed to the extent that it is difficult to distinguish them from each other. From this point of view, application and interpretation are integrated into the process of law reconstruction to derive the law applicable to a given case, or, conversely, the process of justifying a legal conclusion such as a judgment. Legal justification is often divided into internal justification and external justification, but the application of law focuses on the issue of internal justification in that it discusses the validity of arguments used in the process of legal judgment. Despite various discussions on the basic structure or process, the application of law has traditionally been understood as the three stages that the fact-findings and finding/reconstruction of law leads to legal judgment through legal syllogisms, especially subsumption. However, from the middle of the 20th century, as it was revealed that there was a gap between the traditional legal application theory centered on the subsumption model and the actual practice of legal application, a new legal application theory began to be presented from the perspective of modern legal methodology. If we consider that the theory of legal application focuses on accurately describing the process of legal application in reality rather than presenting the standards and procedures for legal application necessary for making correct legal decisions, the new theory of legal application is convincing. However, a desirable legal methodology cannot simply be a descriptive theory that analyzes actual legal application, but should aim for a normative theory that criticizes it and presents a correct legal application theory. In legal methodology, major issues should be dealt with from the view point de lege lata as wel l as de lege ferenda. For exa mple, a hermeneutica l or descriptive approach obser ves and ana lyzes the reality of legal interpretation and legal application, whereas normative approach critically examines whether such legal interpretation or legal application can be justified. Since the basis of legal methodology is philosophy of law, and the main purpose of philosophy of law is analysis and criticism, legal methodology should not remain only in analysis, but should have critical reflection. Interpretation and application of law are not justified simply by the fact that judges in reality interpret and apply the law in a certain way. The final legal decision or judgment is justified or grounded ex post rather than ex ante in accordance with the legal syllogism. Therefore, the deterministic view that legal decisions are derived mechanically from statutes of law is not correct because the application of law is a process of logical reasoning. This is because, just as a judgment becomes legally in effect by a judge’s sentence, a legal decision is established only by the decision of the lawyers. Of course, in the process of legal application, there is no room for personal disposition or values to intervene in the judge’s discretion, and there is also the possibility that arbitrary decisions may be made as a result. However, the skeptical view that the statutes of law have no role in guiding legal decisions is not correct. This is because the lega l application of judges must be made in accorda nce with the constitutional principle of separation of powers. As in the interpretation of the law, it is unfair for judges to arbitrarily exercise their authority or discretion at the application stage of the law. Even if strict application of law sometimes leads to unreasonable results, the resolution of the problem is, in principle, the duty of the legislator, not the duty of the judge. From this point of view, this paper tried to present a practical legal application theory that is based on the classical legal methodology, but reflects the problem of modern legal methodology and partially revises the three stages of law application.

키워드