법해석방법의 우선순위에 대한 시론적 고찰

초록

If there are no established priorities between methods of statutory interpretation, such as linguistic, systemic, historical, and teleological, different conclusions can be drawn depending on which method of legal interpretation is chosen. Methodological pluralism seems inevitable in that the methods of statutory interpretation are the perspectives used to find the correct conclusion case by case. One might go further to the conclusion that it is useless to prioritize methods of interpretation on an abstract and general level. This explanation probably seems to describe the legal process of interpretation in reality in terms of analytic legal methodology. However, the question of whether it is justified to deny the priority between methods of interpretation at the level of normative legal methodology is a separate matter. It is difficult to deny the necessity of normative control over the judge's authority to interpret the legitimacy that often appears in today's case. Similarly, methodological pluralism or hierarchy-scepticism may be consistent with the actual process of legal interpretation that can be grasped from the viewpoint of a legal expert. However, this is far from the process of legal interpretation understood by ordinary citizens. There is no reason to deny the precedence of interpretation methods if one understands the rules on the priority between methods of legal interpretation as "prima facie guidelines that operate on a consistent basis" or "methodological meta-rules with weak meanings." Proposing at the risk of over-schematics, the theoretical model for the prima facie priorities between methods of legal interpretation that interpreters can use practically is as follows. [Step 1] From the point of view of the linguistic interpretation, the interpretation of the statute is the word of the statute, that is, the text of the law. If the result of interpretation in accordance with the ordinary meaning of the text does not clearly contradict the legal ideals including justice, the result of the linguistic interpretation is finally followed. [Step 2] If the results interpreted in accordance with the ordinary meaning of the words are clearly contrary to the legal ideals including justice, they shall be interpreted in consideration of the related legal regulations or statutes and even the relations with the whole legal order in terms of logical-systemic interpretation. However, if the results of the logical-systemic interpretation do not coincide with or are inconsistent with the results of the interpretation of the statute, it is examined whether there is an alternative interpretation that is also consistent with the results of the logical-systemic interpretation within the 'possible meaning' of the text. If there is no interpretation, it is finally followed by the result of the linguitic interpretation. [Step 3] In the 'possible meaning' of the text, if the alternative interpretation, which is not contrary to the legal ideals and can be consistent with the logical-systemic interpretation, is consistent with the original intention of the historical legislator in terms of historical interpretation, follow the systematic and historical interpretation. However, where alternative interpretations within the possible meaning of the text do not agree with the intentions of the historical legislators, they are finally followed by linguistic and historical interpretations. [Step 4] It is unclear whether the alternative interpretation within the possible meaning of the text is consistent with the intention of the historical legislator, but if it is consistent with the ratio legis from the point of view of the purpose of the legislative interpretation, the logical-systemic interpretation and the teleological interpretation are finally followed. However, if it is unclear whether the alternative interpretation within the possible meaning of the word is consistent with the intention of the historical legislator, and if it is unclear whether it is consistent with the ratio legis, then the ultimate interpretation of the word is taken. [Step 5] In the case of contra-legem interpretation, if an alternative interpretation that is beyond the possible meaning of the words is consistent with not only the logical-systemic interpretation but also the teleological interpretation, it is finally applied to the logical-systemic interpretation and the teleological interpretation. However, where alternative interpretations that deviate from the possible meanings of the words are clearly contrary to the results of the interpretation according to the historical interpretation, they shall finally follow the linguistic interpretation and the historical interpretation. In Korea, the impact of modern legal interpretation theories seems to be more prominent, although discussions on the priority between methods of legal interpretation are prevalent. Methods of legal interpretation have been variously applied on a case-by-case basis without worrying about which interpretation method takes precedence. Based on the whole cases, it is not wrong to say that Korean Supreme Courts have traditionally used a text-oriented interpretation. However, if we confine ourselves to the so-called hard cases that the legal methodology pays attention to, the court still tends to prefer the teleological interpretation over other methods of interpretation. Since the 2000s, the Supreme Court has been actively using systemic interpretation methods. But the methods of teleological interpretation rather still leads the Supreme Court case.

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