영미법의 형성과 판사의 권한에 관한 고찰 = The Formation of the Anglo-American Law and the Power of Judges

다국어 초록 (Multilingual Abstract)

Dichotomous explanations of “Civil Law = Statutory Law” and “Common Law = Case Law” are widely used. Still, it is difficult for lawyers and citizens in Civil Law countries to understand case law accurately. How can a case, a resolution for a particular party to a dispute, be a law generally applied to everyone? Although there exists some legal part in the court decision, how can such judgment be called a “law”? When the court interprets statutory law, is it correct to call the court ruling “the law itself,” not the “authoritative interpretation” of the law? While there is a historical background behind the formation of case law, how do judges maintain the tradition of making laws? Is it right to describe the distinctive characteristic of Anglo-American law as “judge-made law” in the present day when the legislative body enacts numerous statutory laws? The article examines judges’ high authority and mighty power in the Common Law tradition to answer these questions. In the birth and development of Anglo-American law, judges exercised strong powers that were difficult to justify with legal theories. The author’s view is that one cannot accurately understand the Common Law system and case law without understanding this unique history and cultural traditions. From this perspective, the article first looks at how Common Law judges historically have acquired and maintained more substantial power than continental law judges. British and American judges can issue a writ of mandamus to direct officials in the executive branch to specific tasks, often order litigants to prohibit certain acts, and severely punish civil contempt with broad discretion. Lawyers in the Anglo-American legal tradition continue to believe that the law does not exist in abstract legislation but concrete court rulings. Therefore, even in modern times, when the legislature actively enacts statutes, Anglo-American lawyers never abandon the belief in “judge-made law.” Whether to recognize case law as a primary source of law, allowing judges to have mighty power, and maintaining the principle of separation of power thoroughly is not a matter of right or wrong, or better or worse. All legal systems should aim to protect the liberties and rights of the sovereign people and promote their happiness, so they should be evaluated as helpful in achieving this goal. It seems that many British and American lawyers and citizens believe that granting strong power to judges helps protect civil liberties and rights better.

목차 (Table of Contents)

• Ⅰ. 들어가는 말 Ⅱ. 영미 판례법의 형성과 발전 Ⅲ. 판례법의 내용과 특성 Ⅳ. 법정모독에 대한 징계 Ⅴ. 맺음말