사법부의 해석방법론에 대한 비판:재론(再論) ― 법 해석방법의 우선순위에 대한 논의를 중심으로 ―

초록

Today, courts in each country use the classical and modern methods of interpretation in various and complex ways. The courts in Korea are not very different. If each methods of interpretation aims at the same conclusion, controversy in interpretation does not arise, but when different conclusions are reached, the priorities between conflicting methods of interpretation inevitably becomes a problem. In particular, the difference in preference for some classical methods results in differences in interpretation results, and ultimately determines the methodology of the judicial interpretation. The position on the priorities between classical methods can be divided into three main types of methodology: textualism that emphasizes literary interpretation, intentionalism that emphasizes historical interpretation, and purposivism that emphasizes purposeful interpretation. In a paper analyzing the methodology of judicial interpretation in 2004 and pointing out the problems, I concluded that the Korean courts followed the purposivism. At that time, I evaluated that the preference for teleological interpretation rather than linguistic interpretation or historical interpretation was clearly revealed in the argumentation process of precedents, and also criticized the limitations of purposivism by finding its own cause. I think that it is necessary to re-evaluate the methodology of judicial interpretation at the present time, after confirming whether there was a fundamental change in the methodology of the judicial interpretation through additional analysis of precedents that appeared after my prior review. This is the research purpose of this paper. According to the results of additional review, looking at the overall flow of precedents, it seems unreasonable to evaluate that the methodology of judicial interpretation has traditionally taken textualism or that it is changing to a system-oriented interpretation theory today. In particular, it is difficult to deny that the court still favors teleological interpretation methods over other methods when it is limited to so-called hard cases that the legal methodology is interested in. This is true even in the light of the fact that the precedents stand in the perspective of an objective interpretation theory that emphasizes the legislative purpose(ratio legis) rather than a subjective interpretation theory that faithfully follows the intention of the legislator. In short, apart from the fact that today various modern methods of interpretation, such as consequence-oriented interpretation or interpretation based on substantive reasons, have an influence on the court's interpretation methodology as much as the classical interpretation method, if only the classical interpretation method is considered, not textualism or system-oriented interpretation, but purposivism is still leading the precedent in Korea. It will not be necessary to reiterate that the purposivism by no means desirable in terms of the nature of judiciary, separation of powers, and harmony with the legal obligation of judges. Above all, there is a risk that the legislative purpose will be degraded as a means to justify the judge's conclusion as the judge's preliminary judgment is projected onto the legislative purpose. Moreover, as legislative techniques and theories develop day by day, efforts to establish legal theories with practical adaptability have spread widely in the legal field, and the constitutional review system has been established and activated, the reasons that have contributed to justify purposivism of the Korean judiciary in the past are gradually disappearing. In light of the reality of Korea, where the rule of law or ‘Die Idee des Rechtsstaat’ is not firmly established today, even at this point in the 21st century, I still can't overemphasize textualism or intentionalism in methods of statutory interpretation.

키워드