소설을 통하여 살펴본 법 규정과 인간의 존엄성 (Rule of law and human dignity viewed through stories)

서지정보

· 발행기관 : 아주대학교 법학연구소
· 수록지 정보 : 아주법학 / 7권 / 3호 / 37 ~ 73페이지
· 저자명 : 이옥자

초록

민주적인 이론에 바탕을 둔 ‘사회적 구조’에서의 ‘법’이란, 주어진 정치적 사회 안에 그어진 선에 의하여 하나의 그룹이 만족스럽고 위엄 있는 삶이 구축될 수 있는 본질로 접근하는 결정적인 조건들이다. 그러나 우리가 지닌 다양한 삶의 구조모형은 이 결정적인 조건에 따른 ‘인간의 존엄성’에 대하여 수없이 많은 입장을 지니고 있기 때문에 법은 법 스스로가 자유의 신장에 목적을 둔 또 다른 그룹을 공동체로부터 제외 Franz Kafka/ Ingeborg Scholz, Vor dem Gesetz: in Analysen und Reflexionen 7. Auflage, Joachim Beyer Verlag, 2008.
시키는 조건들을 지니게 된다.
그러나 이러한 조건을 거부할 수 있는 도덕적 원칙이 존재하지 않기 때문에 지배하는 자와 지배받는 사람, 즉 서로 다른 정의를 지닌, 도덕적 집단과 배타적 소집단은 ‘법의 제국’, ‘법의 통치’로 작용되는 ‘사회적 구조’ 속에서 결정적인 조건이 되는 실정법은 사회적 구조 속의 배타적 소집단에 대한 ‘온정주의’는 사라지게 된다.
이때에 실정법은 도그마틱 (Dogmatic)에 얽매이는 해석에 의존하기 때문에 개별법규에 내재된 법 원리적인 측면을 도외시하게 되는 데, 이는 법적 분쟁해결이 전제되는 구체적인 사태의 사실적, 경험적인 측면을 소홀히 하게 된다.
법조 윤리와 인간의 존엄성은 결국 배타적 소집단의 이야기로 집약되는 데, 정의와 불의가 혼재된 ‘사회적 구조’ 속에서 삶의 구조모형인 소설은, 우리의 삶과 같이 수없이 정의할 수 있는 비슷한 것들을 담아냄 최인훈, 『바다의 편지』, 도서출판 삼인, 2012.
으로써, 누구도 말할 수 없는 배타적 소집단의 이야기를 자신의 목소리로 말한다.
이처럼 소설은 소극적 도그마틱 (Dogmatic)에 얽매여 순환론에 빠져드는 실정법이, 소홀하게 다룰 수 있는 경험적인 측면을 해체하고, 성찰의 공간으로 실정법을 안내한다. 이때에 성찰은 곧 인식 비판적 성찰로서 전체 인류에 자기형성과정의 역사에서 상호주관성의 억압과 회복의 역사를 변증법적으로 추적하는 행위를 의미하게 된다.

영어초록

The novel is to widen the limits of the presence, we see and feel after showing the combination of various human passion indwell in the social structure as collage.
By raising the veil of gray, you'll recognize others blindfolded, and after recognizing, you'll be able to look at the whole. In specialized modern society, whether it's corporate, or military, or law enforcement authorities, or any organization, the organization carries out conspiracy behind the closed door even without the distortion or the need for assassin. Writers demand them to walk into the square to come out of the secret tent.
The novel is the open and the experimental space where you can hear the stories between the parties themselves. Writers must provide the opportunity to judge "Who is included in the moral community?" or "Who should be included in an exclusive small group?." the basic question, that are depicted in the aspect of slaves or strangers, while transparently exposing them in the story.
But "The exclusive small group" is always variable that is described by the authors. The moral community and the exclusive small group's positions are not fixed. The novel just makes us to look inside of 'Being and Time' while premise of the 'variable state' The juridical counselors maybe ourselves trapped in the secret tent as if in the report of Hanna Arendt. So, we may not have been able to see what is absurd. Or, we may have closed our eyes at some absurd without reason. We might have thought that the young people resisting for the human order is disrupting. All those possibilities are inherent in ourselves at anytime.
The rookie lawyer who has been ordered to study the law of a particular point of view or the small step of the argument in the counselor memo, might have failed to identify the seriousness of the whole plan obscured by a gray veil. The insiders are unwilling to expose the dark side because of the entangled relationships or the fear of retaliation. Fellow lawyers prohibit themselves openly criticizing. Ordinary people can not realistically assess the judicial system. Totalitarian reality that created evil by destroying the social after removing the network between individuals and by closing the public sector still exist today.
Human becomes incompetent at thinking, speaking, and judging in an environment where people dominate or being dominated by the monitoring and the accusations The writer Choi In-Hun presented the confirmation of the above examples by describing the experience. He said that the same kind of co-existence of small community in the differentiated society, they are classified depending on not only the economic life but also the nature of their commitment to social action including the religious services, healthcare, governance capabilities and youth education, while not classified by blood relationship.
But Choi In-Hun noted that The revised Criminal Procedure Law has no meaning if it's not accompanied by the change jurists. He said that the trial is to drive the truth to the endless lies and to finally enforce the defendants to believe that 'All of them say is right', and it's the process of enforcing a human to be in trapped into the category of groups, named society. The right to assistance of counsel does not only include the technical aspect. He needs to be aware of the defendant being in a special environment called lawsuit.
For the defendant's substantial defense, he should be free from the constraints of abnormal psychology. Expectations (human trust) to receive the assistance of a person who would act as a buffer is the primary reason to assistance of counsel.
Reality watching a defenseless incident for the defendant who is unable to predict or without preparedness in the investigation carried out against the law by the enforcement agencies, makes us doubt that Revision of the Criminal Procedure Act can be the only solution.
The description of Rule of law and human dignity through the novel of Choi In-Hun is aspiring the longing about Fuller's morality and law and the system that does not disgrace the human. Alleged offender statements in the presence of the prosecutor is recorded according to the memory lane afterward. This means he answers the intended questions after transformation of the memory so that We have to follow the one who got power to mix and match the memory. The experience of the alleged offender is the power of words that is represented by the language technology after all, and the power of words will vary depending on the position and power of the individual experience.
What Cho In-Hun the writer resist through the novel is that 'We started the trial in words as words will ends. In other words, states are relying on the statements, including victim statements, alleged offender statements, testifier statements, and doctor's note, etc... all are 「words」. However these 「word」must not be capricious.' The role of the novel is to intercept and expose the footstep of violence that interferes and distorts the free communication in human history in human history.
Even though it's the substantive law that is consistent with the value in the logic but the novel can cut off the brutality that is created by the jurist who is greed for the law. Message of Choi In-Hun the writer represents as 'buzzword' that the evidence admissibility of the report that is written based on the language skills and memory, behind the door, by the law enforcement agencies, must not be admitted.
According to Choi In-Hun saying that having human dignity means having 'his own' story, the inherent human dignity needs to express their own opinions. He viewed that the secure of the space for this, is inseparable, as set, the space, for the alleged offender interrogation process is still sealed, as the secret chamber, in the law enforcement agencies that have the properties to enforce the confession, against alleged offender.
Like the novel that demands to take down the ten and to come out of the tent to the plaza, he demands, in other words, the liberal center trial, which is also a 'open space' where you can hear their stories.” "Now a days there any saviors for the world did not exist." “if they have an honest heart relate to their job as the jurists at least, They should be able to listen to the desperately crying sound of the poor strangers and slaves yelling "And, for me, no Savior, did not exist. " The novel is the story of the artist and our story that can be defined as the numerous positions competing between the two.
The protagonist might be us wandering to find the truth that does not even exists. We live having hope to find the lawyer who serve as the architect of the social structure who we don't know whether to exist. The language, the medium of literature is not the element, but is a thinking of the community and is the organizational notion, so that if it is the battle of languages.
The language is the bowl that holds thought, desire, love and resentment, and like the language becoming the method to pass the hearts and minds between people, The words of Jurists can become the resources paying off the debt, having mysterious power to dissolve the snow, but it is also the weapon to cut out the heart of others, It's the 'violence' for the ruler to differentiate his enemies or opponents and to brand.
The novel views that the behavior of jurists are the law itself because these are realized in the social structure interacting in human society.
On the assumption "Legally handling device is pressed by jurists and no one else can do it", The novel focuses that Jurists influence the empire of the law as the manager of the provisions of the law.
The novel that defined that "The law is the life of jurists itself." focuses on the role of jurists to enhance human dignity or to attack The novel also maintains functions as a mirror for reflection of legal ethics.

참고자료

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