법 문언의 언어적 의미 - ‘일상적 의미’와 ‘가능한 의미’를 위한 변론 -

초록

Despite persistent criticism and attack on classical interpretive methodologies, the basic frameworks of literal interpretation, systematic interpretation, historical interpretation, and teleological interpretation are still firmly maintained today. Among them, literal interpretation is the most faithful interpretation method to the essence of interpretation in that it reveals the literal meaning of the law, that is, the linguistic meaning of legal texts. For law, especially legislation, exists through language. Language is interpreted according to grammar or the linguistic usage of the language community. Since the legal texts are also languages, it seems natural to interpret the law from the point of view of a normal speaker of language, as described by O.W. Holmes. Legal texts should be understood according to their normal meaning. Literal interpretation takes the legal text(Wortlaut) as the starting point of interpretation and attempts to explore its meaning(Wortsinn). According to the traditional view, the text of the law is the starting point and limit of interpretation. Literal interpretation begins with the ordinary meaning of the legal text and ends with the possible meaning of the legal text. The moment the literal interpretation exceeds the possible meaning of the legal text, it becomes law making(Rechtsfortbildung), not legal interpretation. In this way, the interpretation theory that prioritizes the wording and meaning of the law over other standards or elements of interpretation is a text-oriented interpretation theory, or textualism in the American way. This paper aims to demonstrate the justification of literal interpretation and its limitations by analyzing 'linguistic meaning of legal texts', which is the starting point and goal of literal interpretation from the point of view of a weak text-oriented interpreter or a moderate textualist. There is a purpose. The ordinary meaning can be empirically confirmed through the review of the corpora. Of course, it is not a simple task for the interpreter to grasp the ordinary meaning of the legal texts according to the eye level of the layperson who are outside the law. Law interpreters, including judges, have no choice but to grasp the ordinary meaning of legal texts by using objectively verified reference materials such as dictionaries. Alternatively, you may be able to use traditional evidential examination methods such as expert inquiry or appraisal, search Internet portal sites such as Naver and Daum, or find examples in corpora such as Yonsei Corpus and Sejong Corpus. Also, despite the theoretical and practical limitations of the concept of possible meanings of legal texts, the possible meanings of legal texts are not in themselves contradictio in adjecto. If the range of possible meanings can be objectively determined independently of the interpreter or the case at the stage of interpretation, this can be a criterion for judging the legitimacy of interpretation and the boundary between interpretation and law formation. The literal interpretation focusing on the normal meaning of legal texts, especially the ordinary meaning, is one of the various interpretation methods, but it is a principled interpretation method that can be justified without much controversy from the point of view of the statutory interpretation methodology. It is argued that an interpretation of the law that can deviate from the ordinary meaning of the text by the legislative purpose or purpose is sufficiently acceptable, or that an interpretation of the law that deviates from the possible meaning of the text by simply stating reasonableness is sufficiently acceptable, or that there is a limit of interpretation where the grounding ends. Just asserting it seems insufficient to control the judge's power to interpret the law. Therefore, the burden of argument for its legitimacy is imposed on anyone who attempts an interpretation that is out of line with the ordinary meaning or possible meaning of the legal text. In light of the reality of our country, where the rule of law or the ideology of Rechtsstaat has not been fully settled and shaken even today, even at this point in the 21st century, the literal interpretation that are still faithful to the ordinary meaning and does not deviate from possible meanings cannot be overemphasized no matter how much it is emphasized.

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