독일의 법학교육, 상사법교육 및 시사점 (The legal education system in germany and its suggestions)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 30권 / 1호 / 121 ~ 158페이지
· 저자명 : 최병규

초록

Nowadays the legal education system plays very important role internationally. The competitiveness of one country depends on such a legal education system. In the field of commercial law the confusion of legal systems of civil law and common law show its characteristic. The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system. The United States, along with England and other countries once part of the British Empire, belong to the common law system. The civil law system has its roots in ancient Roman law. The common law system began developing in England almost a millennium ago. By the time England's Parliament was established, its royal judges had already begun basing their decisions on customary law “common” to the realm. A body of decisions was accumulating. Able lawyers assisted the process. On the European continent,Justinian’s resurrected law-books and the legal system of the Catholic Church played critical roles in harmonizing a thousand local laws. We should find out the differences between both legal systems. It is often said that the common law system consists of unwritten “judge-made” law while the civil law system is composed of written codes. For the most part, law in the United States today is “made” by the legislative branch. To some extent, however, the judge-made law analogy is true. But it would be incorrect to say that common law is unwritten law. At the same time, not all law in civil law countries is codified in the sense that it is organized into a comprehensive organic, whole statement of the law on a given subject.
Sometimes individual statutes are enacted to deal with specific issues without being codified. Because of globalisierung of law the both legal systems are nearing rapidly. Therefore we should reflect how the both legal systems will be integrated in korean law and legal system. Corporate law is one important example that shows the integration and similarity, especially after the IMF accident in 1997, 1998. Germany has reformed several times commercial law, especially corporate law in recent times. To make establishing corporate easier, germany allowed 1 EURO limited liability company. This trend is similar to korean reform and reform plan.
In this sense korean legal system is based on continental civil law system.
But the law school is in the near of common law and case based legal system. Nevertheless after beginning of law school in 2009 the korean legal system would not change to anglo-american common law system rapidly.
But cases and case study will be more important. In korea the teaching method is based on continental theory based method. Recently court cases play very important role in learning and also teaching. But the students will not question actively during the lecture. It should be therefore reformed.
The german legal education system will give us good suggestions, because we belong to continental civil law based country. Case study is important,but legal theories should also not be neglected.

영어초록

Nowadays the legal education system plays very important role internationally. The competitiveness of one country depends on such a legal education system. In the field of commercial law the confusion of legal systems of civil law and common law show its characteristic. The two principal legal systems in the world today are those of civil law and common law. Continental Europe, Latin America, most of Africa and many Central European and Asian nations are part of the civil law system. The United States, along with England and other countries once part of the British Empire, belong to the common law system. The civil law system has its roots in ancient Roman law. The common law system began developing in England almost a millennium ago. By the time England's Parliament was established, its royal judges had already begun basing their decisions on customary law “common” to the realm. A body of decisions was accumulating. Able lawyers assisted the process. On the European continent,Justinian’s resurrected law-books and the legal system of the Catholic Church played critical roles in harmonizing a thousand local laws. We should find out the differences between both legal systems. It is often said that the common law system consists of unwritten “judge-made” law while the civil law system is composed of written codes. For the most part, law in the United States today is “made” by the legislative branch. To some extent, however, the judge-made law analogy is true. But it would be incorrect to say that common law is unwritten law. At the same time, not all law in civil law countries is codified in the sense that it is organized into a comprehensive organic, whole statement of the law on a given subject.
Sometimes individual statutes are enacted to deal with specific issues without being codified. Because of globalisierung of law the both legal systems are nearing rapidly. Therefore we should reflect how the both legal systems will be integrated in korean law and legal system. Corporate law is one important example that shows the integration and similarity, especially after the IMF accident in 1997, 1998. Germany has reformed several times commercial law, especially corporate law in recent times. To make establishing corporate easier, germany allowed 1 EURO limited liability company. This trend is similar to korean reform and reform plan.
In this sense korean legal system is based on continental civil law system.
But the law school is in the near of common law and case based legal system. Nevertheless after beginning of law school in 2009 the korean legal system would not change to anglo-american common law system rapidly.
But cases and case study will be more important. In korea the teaching method is based on continental theory based method. Recently court cases play very important role in learning and also teaching. But the students will not question actively during the lecture. It should be therefore reformed.
The german legal education system will give us good suggestions, because we belong to continental civil law based country. Case study is important,but legal theories should also not be neglected.

참고자료

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