한국 법제도의 타율성과 자주성 (The Heteronomy and independence of the Korean legal system)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 31권 / 2호 / 227 ~ 256페이지
· 저자명 : 이재룡

초록

During the colonial period, Japanese imperial government nacted numerous modern laws for efficient Joseon rule, compelling Joseon people compliance with the law. The people of Joseon suffered a sudden change in their lives due to the rule of law. The modern mind presupposes a responsible human image that affirms human self-pulling ability, namely autonomy, that can attribute responsibility to the consequences of one's actions. The characteristics of modern jurisprudence include the democratic system through value relativism and the separation of power, the three principles of modern civil law, the principles of criminal law, which is the charter of rights for criminal defendant, and the thorough contractual thinking that even marriage sees as a contract. These principles still affect the Korean legal system to this day. The theory of separation of the three powers was advocated for the establishment of a balanced relationship between political powers in real politics, not ideological political institution. Some criticize the separation of powers as limiting the efficient implementation of state power rather than controlling power itself. As soon as a member of the National Assembly is elected, he or she will have the privilege of being independent from the people in their constituencies to carry out his or her political intentions. The member of the National Assembly is the representative of the constituency only during the election period, and once he is elected, he is legally justified even if he thoroughly acts for the interests of his party. Lawmakers in Korea have the dual power to enjoy various political privileges of party politics while retaining the principles of national representation in their favor. Article 37 Clause 2 of the Constitution faithfully embodies the principle of sameness that the ruler and the governed coincide by recognizing the legislative power of the National Assembly, the representative of the people, to guarantee the basic rights of the people. This constitutional clause is a clear rationale for the inevitable reason for the National Assembly to legislate and through this regulation, the National Assembly was given legislative power. Therefore, the legislative power of Article 40 of the Constitution should be considered to be within the limits permitted by Article 37-2. The independence of judicial power refers to the principle that judges exercising judicial power in practical terms judge specific cases independently without being bound by anyone's instructions or orders. However, it is hard to confirm an example of a judge being criminally punished for a wrong ruling. This is due to the false illusion that the independence of the judiciary becomes as sacred as religious beliefs. Because of the wide sentences that are given to the criminal accused, judges can have an arrogant mind to show mercy to criminal defendants. The sentence given to a criminal defendant should be balanced not only with the injured law-interest of the victim but also with the purpose of social defense. Excessive protection of rights interests for criminal defendants may undermine the value of practical justice. The many principles of law contained in Eastern legislation derived from long history can be a good alternative to this problems.

영어초록

During the colonial period, Japanese imperial government nacted numerous modern laws for efficient Joseon rule, compelling Joseon people compliance with the law. The people of Joseon suffered a sudden change in their lives due to the rule of law. The modern mind presupposes a responsible human image that affirms human self-pulling ability, namely autonomy, that can attribute responsibility to the consequences of one's actions. The characteristics of modern jurisprudence include the democratic system through value relativism and the separation of power, the three principles of modern civil law, the principles of criminal law, which is the charter of rights for criminal defendant, and the thorough contractual thinking that even marriage sees as a contract. These principles still affect the Korean legal system to this day. The theory of separation of the three powers was advocated for the establishment of a balanced relationship between political powers in real politics, not ideological political institution. Some criticize the separation of powers as limiting the efficient implementation of state power rather than controlling power itself. As soon as a member of the National Assembly is elected, he or she will have the privilege of being independent from the people in their constituencies to carry out his or her political intentions. The member of the National Assembly is the representative of the constituency only during the election period, and once he is elected, he is legally justified even if he thoroughly acts for the interests of his party. Lawmakers in Korea have the dual power to enjoy various political privileges of party politics while retaining the principles of national representation in their favor. Article 37 Clause 2 of the Constitution faithfully embodies the principle of sameness that the ruler and the governed coincide by recognizing the legislative power of the National Assembly, the representative of the people, to guarantee the basic rights of the people. This constitutional clause is a clear rationale for the inevitable reason for the National Assembly to legislate and through this regulation, the National Assembly was given legislative power. Therefore, the legislative power of Article 40 of the Constitution should be considered to be within the limits permitted by Article 37-2. The independence of judicial power refers to the principle that judges exercising judicial power in practical terms judge specific cases independently without being bound by anyone's instructions or orders. However, it is hard to confirm an example of a judge being criminally punished for a wrong ruling. This is due to the false illusion that the independence of the judiciary becomes as sacred as religious beliefs. Because of the wide sentences that are given to the criminal accused, judges can have an arrogant mind to show mercy to criminal defendants. The sentence given to a criminal defendant should be balanced not only with the injured law-interest of the victim but also with the purpose of social defense. Excessive protection of rights interests for criminal defendants may undermine the value of practical justice. The many principles of law contained in Eastern legislation derived from long history can be a good alternative to this problems.

참고자료

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