재판이론의 분석으로 법박학위 받은 정열적인 학구파

강안희 한국사법행정학회 1975 사법행정 Vol.16 No.11

재판이론의 분석(1)

강안희 법조협회 1981 法曹 Vol.30 No.10

裁判論理의 分析

姜顔熙 법조협회 1983 法曹 Vol.32 No.3

裁判論理의 分析 (五)

姜顔熙 법조협회 1983 法曹 Vol.32 No.1

裁判論理의 分析

綱顔熙 법조협회 1983 法曹 Vol.32 No.12

재판이론의 분석(3)

강안희 법조협회 1982 法曹 Vol.31 No.5

裁判의 論理的 分析

姜顔熙 법조협회 1981 法曹 Vol.30 No.6

재판이론의 분석(2)

강안희 법조협회 1981 法曹 Vol.30 No.12

法律學上 裁判의 論理에 있어서의 言語分析方法

姜顔熙 東亞大學校 1968 東亞論叢 Vol.5 No.-

1. Preface The term "judgment" refers to the legal judgment of cases. It is inseparably related with language, in the processes of finding facts, of selecting applicable laws, and further of applying laws concerned. The data in the course of finding facts are offered by verbal expressions and keep on existing in the form of language. Thus, the law and the language are inseparably correlated. The language essentially functions not only in the field of law but in all the social fields. By means of language, man maintains his life in community and enriches his ideas. In the field of modern culture, especially, of science, philosophy, logic and psychology, they pay a considerable attention to the study of language, and, by means of analytical method, they solve and find a clue to solve the knotty problems. Such an analytical method, introduced in the realm of law, has considerably contributed to the clarification of legal conception and to the development of legal thinking. Taking into account such a close relationship between law and language, this article aims at reviewing analytical method of language in the field of judicial judgment. It would greatly be helpful in making clear the logical character of the judgment which is the practical side of laws. But the study on the logical structure of trial is not yet explored except res adjudicata. In short, the study of logical structure of the trial still remains in a state unexplored matter and the purpose of this article is to introduce the importance of that question. II. The Method of Linguistic Analysis 1. Language and Law Human being thinks through language and result of thinking (idea) is expressed by means of language. Human being, in a sense, may be called a complex substance of ideas formed with language. The unescapable ingredient of our experience and cognition, is the symbolization by language. Law is so closely related with language that it might be called'a certain form of language. 2. Language Language is a symbol. Supposing that A indicates B, it could be said that A is interpreted as Bor that A is B. Even though A is not able to describe all the sides of the sides of the B, if there is a systematic relation between A and B, it should be said A is the symbol of B. But human being often forgets the function of the symbol in life. And by misusing language sometimes our social activity lacks logical precision. Such a confusion, as occurred by the ambiguous use of the language, is also found in the realm of law. The linguistic meaning of the text of law shows the general usage of the sentence and is used to explain the normative meaning of law. The meaning of langusge sliows the general usage of the language. Thus, language is a specific sort of the symbols and has relative phases as below: (a) Relation between symbols and human being who uses symbols (it is called pragmatics). (b) Relation between symbols and things which the symbols indicate, or phenomena (it is called semantics). (c) Relation between symbols (it is called syntactics). In the modern symbol logic used in the linguistic analysis, words are chosen from the language used in our daily life. and are symbolzed. The above said relative sides of the symbols of language are roughly classified by the interpretation and application of law as below: (a) Semantics is equivalent to the interpretation of law. (b) Pragmatics, to the application of law. (c) Syntactics, to the formal side of the Logic functioning in interpretation and application of Law. 3. Analysis of Language The method of philosophical analysis, which is used in the analysis of language, was introduced,, for the exact exercise of legal thought and practice of law. The fundamental attitudes of analytical method of language as philosophical method are: (a) To use the artificial language (for instance, symboi) as a supplementary means. (b) To make clear the method to use the natural language so as to use it correctly. (c) To use both methods of (a) and (b). In the symbol logic used in the linguistic analysis, the propositions are symbolized to the letters, X, Y, Z, and the following symbols are used to show the words which function to combine words: (1)X.........................................(Not X) (2)X.Y..................(X and Y) (It is called conjunction) (3)X v Y..................(X or Y)(It is called disjunction) (4)X⊃Y........................(If X, then Y) (It is called implication) (5)X≡Y...............(X equivalent to Y) In the case that X is true and only Y is false, the above (4) shows the proposition to be false. In the case that both X and Y are true, or both false, the above (4) shows the proposition to be true. The following proposition is to be chosen as an axiom: (a) X v X⊃X (b) X⊃X v Y (c) X v Y⊃Y v X (d) (X⊃Y)⊃{(ZvX)⊃(Z v Y)} To the above axiom the following rules are added to introduce other proposition. (a) Rule of subrogation. (b) Rule of inference. A and (A⊃B) are true, therefore B is true. In order to divide the proposition into subject and predicative and to show the mutual relation between them, the following axioms are added: (a) (X) Fx⊃fy (b) fy⊃(∃X) Fx Here is an example to symbolize law by using the above symbol logic: Article of the Civil Code provides that person acquires his capacity to enjoy civil rights. The aforesaid article may be symbolized as (X) (Fx⊃Rx). It is equivalent to (Rx) (Fx. Rx) (F, indicates person and R, Capacity of Right.) Such relation may be shown by the following diagram: As the diagram shows. Article 1 of Civil Code only denies that person "Fx" belongs to the oblique lined part "Fx. Rx" and indicates that nothing is provided on other part. So Article 1 of the Civil Cods allows analogical application but its counterinterpretation is not possible by the logical necessity. So if Article 1 of the Civil Code is interpreted as it recognizes the capacity of enjoyment of rights only to the person, it should be symbolized as below: (x) (Fx≡Rx) The symbol logic is a formal logic, and at the same time, a logic of tautology, and the function as the means of linguistic analysis is limited to such a formability and tautology. Article 1 of the Civil Code is not set by the linguistic logic itself whether the article is to symbolize (x) (Fx⊃Rx) or (x) (Fx≡Rx). In human activities, language is used for such a variety of purposes as to express human idea, to convey his intention, to express his feeling, to give order to others, etc. There is the part impossible to formalize since there are rational and unrational elements in the use of language at the same time. Furthermore, many of the problem are not explained by the method of logical analysis of language, but, at least the confusion and the inexact thought which was brought by the wrong use of language may be avoided by the method of linguistic analysis. III. Logic of Judgment The judgment is the legal decision, and the contents of the judgment must be approved by the verifications of the deductive inference of the syllogism which is contributed by law as a major premise and the facts recognized as a minor premise. But such a decision is nothing more than an intention to solve disputes fairly and is consisted of the subjective determination of judges. So the judgment is the intellectual decision and also is the will of state to solve the disputes. There are two contradictory opinions on the function of inference of syllogism in (he judgment: The one maintains that the inference of the syllogism functions in the process of the judgment and the other holds that it is used as the persuasive means reasoning the results of judgment (the content of the judgment) already established. The former is the viewpoint of the conceptional jurisprudence and the latter, that of the free jurisprudence. To make clear the logical character of the judgment, it is a key problem to find out the character of the inference form of the syllogism. 1. Movability and Instability of the Judgment As the judgment is legal decision and comes into being by the determination of the iudge who intentionally practise legal justice, it should be gone with the discretional judgment by the judges in the interpretation of laws, in the recognition of facts, and in the application of law. The more the content of the law is abstract and the bigger the discretional power of the judgment in the recognition of the facts is, the more dangerous to lose the immovability and the stability is the judgment. Such movability and instability of the judgment are resulted from the logical structure of judgment. As the right to suit was given to the specific individual case in the Roman Law System, it is out of the problem to mention about movability and instability of the judgment. It is also beyond the problem of the movability and instability of the judgment in the Anglo-American Law under the system of unwritten law and the Stare Decisis, as the judgment of the case that there was a precedent, is restricted by the contents of the preceding case and the law applicable to the later case is found automatically from the former case so far as the facts of both cases are same, But, even under the Stare Decisis, the tendency can not be disregarded that solves the case which has the same fact of the preceding case as different case by emphasizing other different side of the fact when the judge wants the different result. Under the Continetal Law System, laws and facts are perfectly divided, There is enough room for leading to the movability and instability of the judgment depending on judge's discretion in the process of finding applicable law and facts. The movability and the instability of .Judgment are an inevitable phenomenon of judgments, but they exclude the possibility of anticipation in the judgment and have possiblity of jeopardizing legal safety. 2. Theory of Law Declaration and Law Creation of the Judgment Judgment goes through the essential moment of tlie unification of intellectual side and intentional side, and it shows both the characters of law declaration and law creation. (a) According to the theory of law declaration, the judgment is to find out the applicable law attached to a certain case referring to precedents and is to declare the law concerned. Judge, as the depositories of law knows the law of lands which is to be applied to the cases and is not allowed to paformse the judgment without legal ground at any case. Law is the perfect one which can cover all the cases concerned and sliould be applied to any case. And it is therefore, impossible to imagine a case that can not be judged by existing laws. If there were a law created by a judge, it would not be a law in real sense and, would accordingly, be a unconstitutional stepover of the scope of his authority and is a disregarded act as well from the viow point of the division of powers. In short, supposing that a law were to be created by a judgment, it would rather be said that law does not exist before trial and the judgment could not be called "a judgment under laws." (b) To the above theory, the theory of law creation holds that laws are actually created by judgments. The most of the ancient laws of Anglo-Saxon have been created and developed by courts and are effective up to present. No one can deny the fact that laws are created by judges. Supposing laws were immovable and unchangeable from the ancient ages; then, Common Law would be of powerless in solving today's problems. Supposing that laws were of perfect, one would inevitably come to the peculiar conclusion that the laws pertainine to the aviation had existed even before airplanes were invented. As the judgment is legal decisions according to existing laws, it must be deduced and derived from th: existing law. Law is embodied and developed through the judgment of concrete cases. The self-development must be creative itself. The whole meaning of the law may change its substantial contents by the trial of a concrete case. Such being the case, trial is the creative action of judges. Geldart recognizes the possiblity of growth of law, and he successfully harmonized the two conflicting views-the theory of law creation and the theory of law declaration. According to him, a judge always tries cases under the formula of applying already existing principles. Even when a judge actually creates a law, he must do it by the deductive or analogical formula of the existing principles. Certainly, it might be said the law is endlessly growing and the growth is an action of development limited by the past and limiting the future. The judgment may therefore be the step to the growth of laws being regulated by the existing laws and producing new laws, at the same time. Thus, law is growing and trial is a step forward to the growth of laws. In such a sense, the trial is a process to find a law and, at the same time, it is a process of creating a new law. 3. The Logic of the Judgment The points of Issue: As is described above, judgment is the intellectual decision of a judge and, at the same time, comes into being by the determination of selecting value with the help of whole personality of the judge. The judgment comes into existence with the combination of intellectual action and the activity of intention. It is the present situation that the form of inference of syllogism, based on the principle of identity, is losing its value as the logical form of judgment. It is an inevitable result of the reflection toward the past attitude of concpetional jurisprudence which tends to ascertain judgment from the intellectual ride only. But since the judgment comes in to being with the both sides of intelligence and intention of judges as referred to in the above, it is impossible to decide the logical character, by disregarding the intantional side. In order to find out the logical character of judgment, it is necessary to understand: what the logic of intelligence and of intention are and what those relation are: what the combination of them is: how the real character of principle of identity is to be ascertained; what the character of the inferercc form of the syllogism, based on the principle of identity, is; 4. Logic Generally speaking, logic means the internal orderliness in our activities and its consistency. The internal order in our activities and its consistency should be expressed in the form of the principle of identity such as "p is p." The form of the principle of identity shown by the formula "p is p", shows the self consistency and the self-development of conciousncss of "p" The feature of the principle of identity is the continuity in the discontinuity. It may be said that the feature of the principle of idetity, "p is p" shows the attitude of self limiting of "p" which is being existed in the continuity in the discontinuity. That makes clear the fundamental principle of logic of intelligence and of intention, and may be a key point to understand the character of the logic. The inference form of the syllogism is those of the self-development of "p" according to the principle of identity, ("p" is predicated in the general proposition as major premise.) 5. Logic of the Interpretation of Law As everything is meditated, expressed, and comes into being through language the understanding of the law is inseparably linked with linguistic expression. By the ability to understand language and the knowledge of the law, we can affirm the legal language and find out the general meaning of letters, words and sentences composed of it, and seize the relative sides of sense of the legal languages The process of interpreting, understanding, and catching the possible implication included in the letters, words, and sentences composing the legal language, is called the grammatical interpretation. The interpretation of law is based on the factual sense caught by the grammatical interpretation. But for the interpretation of law a workprocess is necessary to make a logical circulation connecting the factual sense with the legal field according to the basic principle of the full systematical constructure of legal order. The logical sense is the sense caught in accordance with the above work process. The logical sense is obtained without being influenced by the specific concrete application. It functions directly to the factual sense but, at the same time, it functions directly to the sense of the law. The high dimensional interpretation is based on the said logical sense and is the work to make a possible normative imagination expected. The interpretation of law begins with the method of grammatical interpretation and ends with the high dimensional interpretation. High dimensional interpretation finds its base on the logical sense and is ruled by the concrete object of application and is the work process of setting the standard of application. Thus, the interpretation of law is consisted of continuation of steps of the grammatical, logical and high dimensional interpretation and forms a compound strcuture, therefore, the sense of the law is acquired in the interrelation between the fact and the ideal. The logical character required at the interpretation of law is, in the grammatical interpretaion, the consistency with the regulatory relations between the language and the meaning, in high dimensional interpretation, the logic of intention, the will to get a fair result, operates. 6. Logic of Recognition of the Fact Trial is a legal decision and comes into being as the result of application of law to the settled-fact. So, it is necessary to settle a fact before judgment is passed, as the premise of trial. The recognition of the fact as the premise of the judgment is obtained through evidential materials which exists in the form of language, The recognition of fact is always intervened by the element of the legal idea. It is the activity of concluding the factual sense on which the concrete sense of the law would construct. It has the character of real-Ideal. In general, the recognition of fact is to recognize a fact as it is. But, what does it mean to recognize the fact as it is? It is doubtful if we recognize all the full sides of facts taken in front of us. Above all, it is little possible to recognize the fact that happened once in the past. as it was We merely recognize it with sense through the existing materials (evidential materials)on certain satandpoint as directed by the above materials. In the interpretation of law. a logical interpretation is the process in the correlation between the sense of the law and the factual sense, while the recognition of fact is the process in the correlation between the abstract sense obtained by the interpretation of law and the fact settled by the recognition The fact recognized schematically functions maintaining correlation between the sense of law and concrete phenomenon as well as the logical sense cought by logical interpretation is schematically functions maintaining correlation between the fact and the law. Both are the same in functioning schematically but the logical sense is the general and abstracted sense, whereas the recognized fact is of individual and concrete sense. Originally, the rationality of law is the rationality to be substantiated by the individual and factual unrationality. The individual and factual unrationality is the unrationality to be rationalized, by law The true feature of the recognition of fact is the action directly to experience the concrete correlation between the rationality of law and the unrationality of fact, and is not the simple action which recognizes the fact, as it is. (a) Rule of Experience The recognition of the fact should be supported by the rule of both logic and experience (Article 261 of the Code of Civil Procedure Law). The recognition of fact should be found on the basis of evidential materials; the contents thereof should be admitted and convinced by the rule of experience, and should be logicaly corresponded to the materials basing on it. (b) Probability Even though the recognition of fact is in line with a strict rule of experience, it is confined within the limit of our inference. So, there is a problem of certainty-that is, the possibility of accuracy in recognizing fact. we only act with the certainty to some extent throughthe direct and indirect experiences. The recognition of fact in the litigation should be the judgment supported by the highest probability and requires the certainty that no one can reasonably odubt. It is necessary that the judge should recognize the fact with hisbt es possible effort that can be expected from ordinary judges. We can have the certainty by experiences. The entity of the certainty required by the recognition of fact in the litigation is the inference supported by the conviction obtained by the direct or indirect experiences. Our conviction is molded into a form. when the negative function in our mind dies away. The probability required in the litigation is the belief formed: when the recognition of fact is proved by as many evidential materials as expected to obtain; whenit is determined by the rule of experience and also by the logic; when the idea of law and regulation are conformed to the one which was indicated by evidential materials; judge forms conviction in the recognition of fact. Such conviction may, therefore, not permit further question even by the reasonable doubt. (c) Logical appearance which functions in the Recognition of Fact The logical appearance which functions in the recognition of fact, as is in the interpretation of law, is the combined logic of the intelligence and intention. That the recognition of fact should be conformed to the evidential materials The evidential materials indicate the recognized fact which is based on it. So, required is the regulatory relations of linkage among the evidential materials and the fact recognized. IV. Application of Law The application of law is the constructive function of the concret law based on the recognized fact which was grasped by the sense of law. It is the work process to individualize definitely the sense of law. It is through the media of the recognition of fact. The sense of law and the specific fact are jointed concretely with the recognition of fact. The sense of law becomes to be definite and the specific fact comes to be abstracted to the sense of the law. Thus, the abstracted sense of law concretely expresses itself to be specific through the media of the recognition of fact. The application of law is the process to construct the specifically individual law with the form of inference of the syllogism induced from the sense of law as the major premise and the fact recognized as the minor premise. The sense of the law of the major premise is limited to the specific factual sense by the recognition of fact and is concluded to the concrete sense by the judgment. The possible normative imagination in the sense of law is individualized into the concrete actual normative imagination by means of judgment. In the application of law, it is understood that the logical format functioned there is the form of inference of the syllogism based on the principle of identity. V. Conclusion Judgment is a result of self-development of law in the concrete and individual fact. The form of logic which functions in the process of judgment is the form of principle of identity which is the fundamental principle of all logic, formal or informal and the base of syllogism. The logic functioning in judgment is coincidental to the idea and purpose which are aimed by law to be realized, and is adjusted with the existing legal system. It is true that judgment is generally formed with judge's individual estimate about values, but the result of it should be justified by legal idea systematized in the existing legal system. It is reasonable that realists are recently trying to build some objective standards for judgment to avoid the intervnetion of arbitrariness and prejudice of judges in judgment. The judgment should be the concrete and embodied form of the self-development of law. The intervention of judge's individual belief and estimate about values should be what is justified and systematized by the existing legal idea, purpose and system.